<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 4, 1998
REGISTRATION NO. 333-59391
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
NEWFIELD EXPLORATION COMPANY
NEWFIELD FINANCIAL TRUST I
NEWFIELD FINANCIAL TRUST II
(Exact Name of Registrants as specified in their charters)
<TABLE>
<S> <C>
DELAWARE 71-1133047
DELAWARE APPLIED FOR
DELAWARE APPLIED FOR
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
<TABLE>
<S> <C>
TERRY W. RATHERT
VICE PRESIDENT -- PLANNING
AND ADMINISTRATION AND SECRETARY
363 N. SAM HOUSTON PARKWAY E., 363 N. SAM HOUSTON PARKWAY E.,
SUITE 2020 SUITE 2020
HOUSTON, TEXAS 77060 HOUSTON, TEXAS 77060
(281) 847-6000 (281) 847-6000
(Address, including zip code, and telephone number,
including (Name, address, including zip code, and telephone
area code, of Registrants' principal executive number,
offices) including area code, of agent for service)
</TABLE>
Copy to:
<TABLE>
<S> <C>
JAMES H. WILSON J. DAVID KIRKLAND, JR.
VINSON & ELKINS L.L.P. BAKER & BOTTS, L.L.P.
2300 FIRST CITY TOWER 3000 ONE SHELL PLAZA
1001 FANNIN STREET 910 LOUISIANA
HOUSTON, TEXAS 77002-6760 HOUSTON, TX 77002-4995
(713) 758-2222 (713) 229-1234
(713) 758-2346 (FAX) (713) 229-1522 (FAX)
</TABLE>
---------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are being offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, please check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED(1)(2) PRICE(3)(4)(5) REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities(6)..........................................
Preferred Stock.............................................
Depositary Shares(7)........................................
Common Stock................................................
Securities Warrants.........................................
Preferred Securities of Trust...............................
Debentures(8)...............................................
Guarantees of Preferred Securities of Trust by Newfield
Exploration Company(9)....................................
- -------------------------------------------------------------------------------------------------------
Total............................................. $275,000,000 $81,125*
- -------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------
</TABLE>
- ---------------
* Previously paid $73,750.
(1) Not specified as to each class of securities to be registered pursuant to
General Instruction II(D) to Form S-3 under the Securities Act of 1933, as
amended.
(2) This Registration Statement also covers such indeterminate amount of
securities as may be issued in exchange for, or upon conversion or exercise
of, as the case may be, the Debt Securities, Preferred Stock, Depositary
Shares, Securities Warrants, Preferred Securities of Trust or Debentures
registered hereunder. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(4) No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the Debt Securities, Preferred Stock, Depositary Shares,
Preferred Securities of Trust or Debentures registered hereunder.
(5) The proposed maximum offering price per unit will be determined from time to
time by the Registrants in connection with, and at the time of, the issuance
by the Registrants of the securities registered hereunder.
<PAGE> 2
(6) The aggregate principal amount of the Debt Securities may be increased if
any Debt Securities are issued at an original issue discount by an amount
such that the gross proceeds to be received by Newfield Exploration Company
shall be equal to the above amount to be registered. Any offering of Debt
Securities denominated other than in U.S. dollars will be treated as the
equivalent of U.S. dollars based on the exchange rate applicable to the
purchase of such Debt Securities at the time of initial offering. In no
event will the aggregate initial offering price of all securities issued
from time to time pursuant to this Registration Statement exceed
$275,000,000, or the equivalent thereof in foreign currencies or composite
currencies.
(7) Such indeterminate number of Depositary Shares to be evidenced by Depositary
Receipts issued pursuant to a Deposit Agreement. In the event that Newfield
Exploration Company elects to offer to the public fractional interests in
shares of the Preferred Stock registered hereunder, Depositary Receipts will
be distributed to those persons purchasing such fractional interests and
such shares will be issued to the Depositary under the Deposit Agreement.
(8) The Debentures of Newfield Exploration Company will be purchased by Newfield
Financial Trust I or Newfield Financial Trust II with the proceeds from the
applicable sale of Preferred Securities of Newfield Financial Trust I or
Newfield Financial Trust II.
(9) No separate consideration will be received for the Guarantee or back-up
undertakings of Newfield Exploration Company. Includes the rights of holders
of the Preferred Securities under the applicable Guarantee and back-up
undertakings, consisting of obligations of Newfield Exploration Company as
set forth in the respective Trust Agreements of Newfield Financial Trust I
or Newfield Financial Trust II (including the obligation to pay expenses of
Newfield Financial Trust I or Newfield Financial Trust II, as applicable)
and the applicable Indenture governing the Debentures of Newfield
Exploration Company, in each case as further described in the Registration
Statement.
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 3
EXPLANATORY NOTE
This Registration Statement consists of two separate Prospectuses, covering
registration of the offering, issuance and sale of:
(1) Debt Securities, Preferred Stock, Depositary Shares, Common Stock
and Securities Warrants of Newfield Exploration Company; and
(2) Preferred Securities of Newfield Financial Trust I and Newfield
Financial Trust II, Debentures and a Guarantee of Newfield Exploration
Company and Common Stock of Newfield Exploration Company that may be issued
upon conversion of the Preferred Securities.
i
<PAGE> 4
PROSPECTUS
NEWFIELD EXPLORATION COMPANY
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
SECURITIES WARRANTS
---------------------
Newfield Exploration Company ("Newfield" or the "Company") may offer and
sell from time to time pursuant to this Prospectus (i) unsecured debt
securities, in one or more series, consisting of notes, debentures or other
evidences of indebtedness ("Debt Securities"), (ii) shares of preferred stock,
par value $.01 per share, of the Company, in one or more series ("Preferred
Stock"), which may be issued in the form of depositary shares evidenced by
depositary receipts ("Depositary Shares"), (iii) shares of common stock, par
value $.01 per share, of the Company ("Common Stock") or (iv) warrants
("Securities Warrants") to purchase Debt Securities, Preferred Stock, Depositary
Shares, Common Stock or other securities. The aggregate initial offering price
of the Debt Securities, Preferred Stock, Depositary Shares, Common Stock and
Securities Warrants (collectively, the "Securities") which may be sold pursuant
to this Prospectus will not exceed $275,000,000 or, if applicable, the
equivalent thereof in any other currency or currency unit. The Securities will
be offered in amounts, at prices and on terms to be determined in light of
market conditions at the time of sale. Any Securities may be offered separately
or as units with other Securities.
The specific terms of the particular Securities to be issued will be set
forth in a supplement to this Prospectus (a "Prospectus Supplement"), which will
be delivered together with this Prospectus, including, where applicable (i) in
the case of Debt Securities, the specific designation, aggregate principal
amount, ranking as senior, senior subordinated or subordinated Debt Securities,
maturity, rate or rates (or method of determining the same) and time or times
for the payment of interest, if any, any exchangeability or conversion terms,
any terms for optional or mandatory redemption or repurchase, or payment of
additional amounts or any sinking fund provisions, the designation of the
trustee acting under the applicable indenture, and any other specific terms of
such Debt Securities, (ii) in the case of Preferred Stock, the specific
designation, number of shares and liquidation value thereof and the dividend,
liquidation, redemption, voting and other rights, including conversion or
exchange rights, if any, and any other special terms, as well as whether
interests in the Preferred Stock will be represented in Depositary Shares, (iii)
in the case of Common Stock, the number of shares, and (iv) in the case of
Securities Warrants, the number and terms thereof, the designation and number or
amount of Securities issuable upon their exercise, the exercise price, the terms
of the offering and sale thereof and, where applicable, the duration and
detachability thereof. The Prospectus Supplement will also contain information
regarding the public offering price, the net proceeds to the Company and, where
applicable, the United States federal income tax considerations relating to the
Securities covered by the Prospectus Supplement and a description of certain
factors that should be considered in connection with an investment in the
Securities covered by the Prospectus Supplement.
The Securities may be sold directly by the Company to investors, through
agents designated from time to time or to or through underwriters or dealers.
See "Plan of Distribution." If any agents of the Company or any underwriters are
involved in the sale of any Securities in respect of which this Prospectus is
being delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in a Prospectus Supplement.
---------------------
The Common Stock is traded on the New York Stock Exchange (the "NYSE") under
the symbol "NFX." Any Common Stock sold pursuant to a Prospectus Supplement will
be listed on such exchange, subject to official notice of issuance. The
Prospectus Supplement will state whether any other Securities offered thereby
will be listed on a securities exchange.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This Prospectus may not be used to consummate sales of the Securities unless
accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS SEPTEMBER 4, 1998.
<PAGE> 5
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the following Regional Offices of the Commission: Chicago
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and New York Regional Office, Seven World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material may be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a World
Wide Web site on the Internet at http://www.sec.gov that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission. The Company's Common Stock is traded on the
NYSE and reports, proxy statements and other information concerning the Company
may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). This Prospectus omits certain of the
information contained in the Registration Statement, and reference is hereby
made to the Registration Statement for further information with respect to the
Company and the securities offered hereby. Any statements contained herein
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission are not
necessarily complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission under the Exchange Act (File No. 1-12534), are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1997;
(b) Quarterly Report on Form 10-Q for the quarters ended March 31,
1998 and June 30, 1998;
(c) Current Report on Form 8-K filed with the Commission on August 28,
1998; and
(d) description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on November 4, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities pursuant hereto shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such document. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents that are incorporated by reference in this
Prospectus (other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Written or oral
requests for such copies should be directed to James P. Ulm, II, Treasurer,
Newfield Exploration Company, 363 N. Sam Houston Parkway E., Suite 2020,
Houston, Texas 77060; telephone: (281) 847-6000.
2
<PAGE> 6
FORWARD-LOOKING STATEMENTS
This Prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. All
statements other than statements of historical facts included in this document,
including statements regarding business strategy and other plans and objectives
for future operations, are forward-looking statements. Although the Company
believes that the expectations reflected in such forward-looking statements are
reasonable, such statements are based upon assumptions and anticipated results
that are subject to numerous uncertainties. Actual results may vary
significantly from those anticipated due to many factors, including drilling
results, oil and gas prices, industry conditions, the prices of goods and
services, the availability of drilling rigs and other support services, the
availability of capital resources and the other factors set forth in the
Company's filings incorporated by reference herein. In addition, the drilling of
oil and gas wells and the production of hydrocarbons are subject to governmental
regulations and operating risks. All subsequent written and oral forward-looking
statements attributable to the Company or persons acting on its behalf are
expressly qualified in their entirety by such factors.
THE COMPANY
Newfield is an independent oil and gas company engaged in the exploration,
development and acquisition of oil and natural gas properties located primarily
in the Gulf of Mexico. The Company discovered and acquired its first oil and gas
reserves in 1990 and has grown rapidly since that time. At December 31, 1997,
the Company had proved reserves of 435.3 Bcfe. At such date, approximately 78%
of the Company's proved reserves were natural gas and approximately 80% were
proved developed.
Newfield's strategy is to continue to expand its reserve base and increase
its cash flow through exploration and the acquisition and exploitation of proved
properties. The Company emphasizes the following elements in implementing this
strategy:
- Reserve growth through exploratory drilling of a balanced portfolio
- Balance between exploration and acquisition and exploitation of proved
properties
- Geographic focus
- Control of operations and costs
- Use of 3-D seismic and other advanced technology
- Equity ownership and other incentives to retain and attract employees
The principal executive offices of the Company are located at 363 N. Sam
Houston Parkway E., Suite 2020, Houston, Texas 77060; telephone: (281) 847-6000.
Additional information concerning the Company and its subsidiaries is
included in the Company reports and other documents incorporated by reference in
this Prospectus. See "Available Information" and "Incorporation of Certain
Documents by Reference."
USE OF PROCEEDS
Except as may otherwise be described in the Prospectus Supplement relating
to an offering of Securities, the net proceeds from the sale of the Securities
offered pursuant to this Prospectus and such Prospectus Supplement (the "Offered
Securities") will be used for general corporate purposes. Any specific
allocation of the net proceeds of an offering of Securities to a specific
purpose will be determined at the time of such offering and will be described in
the related Prospectus Supplement.
3
<PAGE> 7
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods as shown.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------ --------------
1993 1994 1995 1996 1997 1997 1998
----- ----- ----- ----- ---- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges......................... 82.3x 31.2x 24.1x 28.3x 9.5x 13.6x 3.3x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing earnings by
fixed charges. For this purpose, earnings are defined as income before income
taxes plus fixed charges excluding capitalized interest. Fixed charges consist
of interest expense and the estimated interest component of rent expense.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will constitute either senior or senior subordinated
debt of the Company ("Senior Debt Securities") or subordinated debt of the
Company ("Subordinated Debt Securities"). Debt Securities may be issued from
time to time under one or more indentures, each dated as of a date on or prior
to the issuance of the Debt Securities to which it relates. Senior Debt
Securities (constituting either senior or senior subordinated indebtedness) may
be issued pursuant to one or more Senior Indentures (each a "Senior Debt
Indenture") and Subordinated Debt Securities may be issued pursuant to a
Subordinated Indenture ( the "Subordinated Debt Indenture"), in each case
between the Company and a trustee (a "Trustee"), which may be the same Trustee,
and in the forms that have been filed as exhibits to the Registration Statement
of which this Prospectus is a part, subject to such amendments or supplements as
may be adopted from time to time. The Senior Debt Indentures and the
Subordinated Debt Indenture, as amended or supplemented from time to time, are
sometimes hereinafter referred to individually as an "Indenture" and
collectively as the "Indentures." The following summaries of anticipated
provisions of the Indentures and the Debt Securities do not purport to be
complete and such summaries are subject to the detailed provisions of the
applicable Indenture to which reference is hereby made for a full description of
such provisions, including the definition of certain terms used herein. Article
or section references in parentheses below are to articles or sections in both
Indentures unless otherwise indicated. Wherever particular sections or defined
terms of the applicable Indenture are referred to, such sections or defined
terms are incorporated herein by reference as part of the statement made, and
the statement is qualified in its entirety by such reference. The Indentures are
substantially identical, except for certain covenants of the Company, and
provisions relating to subordination and conversion.
The Debt Securities may be issued from time to time in one or more series.
The following description of the Debt Securities sets forth certain general
terms and provisions of the Debt Securities of all series. The particular terms
of each series of Debt Securities offered by any Prospectus Supplement (the
"Offered Debt Securities") will be described therein.
PROVISIONS APPLICABLE TO BOTH SENIOR AND SUBORDINATED DEBT SECURITIES
General. The Debt Securities will be unsecured senior, senior subordinated
or subordinated obligations of the Company and may be issued from time to time
in one or more series. The Indentures do not limit the amount of Debt
Securities, debentures, notes or other types of indebtedness that may be issued
by the Company or any of its Subsidiaries nor do they restrict transactions
between the Company and its affiliates or the payment of dividends or other
distributions by the Company to its stockholders. The rights of holders of Debt
Securities will be limited to the assets of the Company and the Debt Securities
will not be obligations of any of the Company's Subsidiaries. In addition, other
than as may be set forth in any Prospectus Supplement, the Indentures do not and
the Debt Securities will not contain any covenants or other provisions that are
intended to afford holders of the Debt Securities special protection in the
event of either a change of control of the Company or a highly leveraged
transaction by the Company.
4
<PAGE> 8
Reference is made to the Prospectus Supplement for the following terms of
and information relating to the Offered Debt Securities (to the extent such
terms are applicable to such Offered Debt Securities): (i) the title of the
Offered Debt Securities; (ii) the classification as either Senior Debt
Securities or Subordinated Debt Securities (including the further classification
of Senior Debt Securities as either senior debt or senior subordinated debt);
(iii) whether the Offered Debt Securities that constitute Subordinated Debt
Securities are convertible into Common Stock and, if so, the terms and
conditions upon which such conversion will be effected including the initial
conversion price or conversion rate (the "Conversion Price") and any adjustments
thereto in addition to or different from those described herein, the conversion
period and other conversion provisions in addition to or in lieu of those
described herein; (iv) any limit on the aggregate principal amount of the
Offered Debt Securities; (v) whether the Offered Debt Securities are to be
issuable as Registered Securities or Bearer Securities or both, whether any of
the Offered Debt Securities are to be issuable initially in temporary global
form and whether any of the Offered Debt Securities are to be issued in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Debt Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which such exchanges may
occur; (vi) the price or prices (expressed as a percentage of the aggregate
principal amount thereof) at which the Offered Debt Securities will be issued;
(vii) the date or dates on which the Offered Debt Securities will mature; (viii)
if other than the principal amount thereof, the portion of the principal amount
of any Debt Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof; (ix) the rate or rates per annum (or the
method by which such will be determined) at which the Offered Debt Securities
will bear interest, if any, and the date from which any such interest will
accrue; (x) the Interest Payment Dates on which any such interest on the Offered
Debt Securities will be payable, the Regular Record Date for any interest
payable on any Offered Debt Securities which are Registered Securities on any
Interest Payment Date and the extent to which, or the manner in which, any
interest payable on a temporary global Offered Debt Security on an Interest
Payment Date will be paid; (xi) the person to whom any interest on any
Registered Security shall be payable, if other than the person in whose name
that Security (or one or more predecessor securities) is registered at the close
of business on the record date for such interest, and the manner in which, or
the person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature; (xii) any mandatory redemption,
sinking fund or analogous provisions; (xiii) each office or agency where,
subject to the terms of the Indentures as described below under "Payment and
Paying Agents," the principal of and any premium and interest on the Offered
Debt Securities will be payable and each office or agency where, subject to the
terms of the Indentures as described below under "Form, Exchange, Registration
and Transfer," the Offered Debt Securities may be presented for registration of
transfer or exchange; (xiv) the right of the Company to redeem the Offered Debt
Securities at its option and the period or periods within which and the price or
prices at which the Offered Debt Securities may, pursuant to any optional or
mandatory redemption provisions, be redeemed, in whole or in part, and the other
detailed terms and provisions of any such optional or mandatory redemption; (xv)
the denominations in which any Offered Debt Securities that are Registered
Securities will be issuable, if other than denominations of $1,000 and any
integral multiple thereof, and the denomination or denominations in which any
Offered Debt Securities that are Bearer Securities will be issuable, if other
than the denomination of $5,000; (xvi) the currency or currencies (including
composite currencies) in which payment of principal of and any premium and
interest on the Offered Debt Securities is payable if other than U.S. dollars,
and, if payable in such currency or currencies at the election of the Company or
a Holder thereof, the periods within which the terms and conditions upon which
such election is to be made; (xvii) any index used to determine the amount of
payments of principal of and any premium and interest on the Offered Debt
Securities; (xviii) information with respect to book-entry procedures, if any;
(xix) any deletions from, modifications of or additions to the Events of Default
or covenants of the Company with respect to such Offered Debt Securities; and
(xx) any other terms of the Offered Debt Securities not inconsistent with the
provisions of the Indentures. (Section 301) Any such Prospectus Supplement will
also describe any special provisions for the payment of additional amounts with
respect to the Offered Debt Securities.
5
<PAGE> 9
Debt Securities may be issued as Original Issue Discount Securities. An
Original Issue Discount Security is a Debt Security that is issued at a price
lower than the principal amount payable upon the Stated Maturity thereof and
that provides that upon redemption or acceleration of the maturity thereof an
amount less than the amount payable upon the Stated Maturity thereof and
determined in accordance with the terms of such Debt Security shall become due
and payable. Special United States federal income tax considerations applicable
to Debt Securities issued at an original issue discount, including Original
Issue Discount Securities, and special United States tax considerations and
other terms and restrictions applicable to any Debt Securities that are issued
in bearer form, offered exclusively to United States Aliens or denominated in
other than United States dollars, will be set forth in a Prospectus Supplement
relating thereto.
Form, Exchange, Registration and Transfer. Debt Securities of a series may
be issuable in definitive form solely as Registered Securities, solely as Bearer
Securities or as both Registered Securities and Bearer Securities. Unless
otherwise indicated in an applicable Prospectus Supplement, Bearer Securities
will have interest coupons attached. (Section 201) The Indentures also provide
that Debt Securities of a series may be issuable in temporary or permanent
global form. (Section 201)
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both Registered Securities and Bearer Securities, at
the option of the Holder, and subject to the terms of the applicable Indenture,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons in default) of such series will be exchangeable for Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor. Bearer Securities surrendered in exchange
for Registered Securities between a Regular Record Date or a Special Record Date
and the relevant date for payment of interest shall be surrendered without the
coupon relating to such date for payment of interest, and interest accrued as of
such date will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the terms of the applicable Indenture.
Bearer Securities will not be issued in exchange for Registered Securities.
(Section 305)
Debt Securities may be presented for exchange as provided above, and
Registered Securities 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 Indentures. 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 Trustee will serve initially
as Security Registrar. (Section 305) If a Prospectus Supplement refers to any
transfer agents (in addition to the Security Registrar) initially designated by
the Company with respect to any 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, except that, if Debt
Securities of a series are issuable solely as Registered Securities, the Company
will be required to maintain a transfer agent in each Place of Payment for such
series and, if Debt Securities of a series are also issuable as Bearer
Securities, the Company will be required to maintain (in addition to the
Security Registrar) a transfer agent in a Place of Payment for such series
located outside the United States. The Company may at any time designate
additional transfer agents with respect to any series of Debt Securities.
(Section 1002)
In the event of any redemption in part, the Company shall not be required
to (i) issue, register the transfer of or exchange 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 (A) if Debt Securities of the series are issuable only as
Registered Securities, the day of mailing of the relevant notice of redemption
and (B) if Debt Securities of the series are issuable as Bearer Securities, the
date of the first publication of the relevant notice of redemption or, if
Securities of the series are also issuable as Registered Securities and there is
no publication, the mailing of the relevant notice of redemption, (ii) register
the transfer of or exchange any Registered Security, or portion thereof, called
for redemption, except the unredeemed portion of any Registered Security being
redeemed in part, or (iii) exchange any
6
<PAGE> 10
Bearer Security called for redemption, except to exchange such Bearer Security
for a Registered Security of that series and like tenor which is immediately
surrendered for redemption. (Section 305)
Payment and Paying Agents. Unless otherwise indicated in an applicable
Prospectus Supplement, payment of principal of and any premium and interest on
Bearer Securities will be payable, subject to any applicable laws and
regulations, at the offices of such Paying Agents outside the United States as
the Company may designate from time to time in the manner indicated in such
Prospectus Supplement. (Section 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of interest on Bearer Securities on
any Interest Payment Date will be made only against surrender to the Paying
Agent of the coupon relating to such Interest Payment Date. (Section 1001) No
payment with respect to any Bearer Security will be made at any office or agency
of the Company in the United States or by check mailed to any address in the
United States or by transfer to any account maintained with a bank located in
the United States. Notwithstanding the foregoing, payments of principal of and
any premium and interest on Bearer Securities denominated and payable in U.S.
dollars will be made at the office of the Company's Paying Agent in the Borough
of Manhattan, City of New York, if (but only if) payment of the full amount
thereof in U.S. dollars at all offices or agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions. (Section 1002)
Unless otherwise indicated in an applicable Prospectus Supplement, payment
of principal of and any premium and interest on Registered Securities will be
made at the office of such Paying Agent or Paying Agents as the Company may
designate from time to time, except that, at the option of the Company, payment
of any interest may be made by check mailed on or before the due date to the
address of the Person entitled thereto as such address shall appear in the
Security Register. (Sections 307, 1002) Unless otherwise indicated in an
applicable Prospectus Supplement, payment of any installment of interest on
Registered Securities will be made to the Person in whose name such Registered
Security is registered at the close of business on the Regular Record Date for
such interest. (Section 307)
Unless otherwise indicated in an applicable Prospectus Supplement, the
Trustee will act as Paying Agent for payments with respect to Debt Securities
which are issuable solely as Registered Securities and the Company will maintain
a Paying Agent outside the United States for payments with respect to Debt
Securities (subject to limitations described above in the case of Bearer
Securities) which are issuable solely as Bearer Securities or as both Registered
Securities and Bearer Securities. Any Paying Agents outside the United States
and any other Paying Agents in the United States initially designated by the
Company for the 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, if Debt Securities of a series
are issuable solely as Registered Securities, the Company will be required to
maintain a Paying Agent in each Place of Payment for such series and, if Debt
Securities of a series are issuable as Bearer Securities, the Company will be
required to maintain (i) a Paying Agent in the Borough of Manhattan, City of New
York for principal payments with respect to any Registered Securities of the
series (and for payments with respect to Bearer Securities of the series in the
circumstances described above, but not otherwise), and (ii) a Paying Agent in a
Place of Payment located outside the United States where Debt Securities of such
series and any coupons appertaining thereto may be presented and surrendered for
payment. (Section 1002)
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 two years after such principal, premium or interest
shall have become due and payable will (subject to applicable escheat laws) be
repaid to the Company, and the Holder of such Debt Security or any coupon will
thereafter look only to the Company for payment thereof. (Section 1003)
Global Debt Securities. Debt Securities of a series may be issued in whole
or in part in the form of one or more global Debt Securities that will be
deposited with, or on behalf of, a depository identified in the Prospectus
Supplement relating to such series. Global Debt Securities may be issued in
either registered or bearer form and in either temporary or permanent form.
(Section 203) Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented thereby, a global Debt Security may not
be
7
<PAGE> 11
transferred except as a whole by the depository for such global Debt Security to
a nominee of such depository or by a nominee of such depository to such
depository or another nominee of such depository or by the depository or any
nominee to a successor depository or any nominee of such successor.
The specific terms of the depository arrangement with respect to a series
of Debt Securities and certain limitations and restrictions relating to a series
of Bearer Securities in the form of one or more global Debt Securities will be
described in the Prospectus Supplement relating to such series.
Events of Default. Any one of the following events constitutes an Event of
Default under each Indenture with respect to Debt Securities of any series: (a)
failure to pay any interest on any Debt Security of that series when due,
continued for 30 days; (b) failure to pay principal of or any premium on any
Debt Security of that series when due; (c) failure to deposit any sinking fund
payment, when due, in respect of any Debt Security of that series; (d) failure
to perform any other covenant of the Company in such Indenture (other than a
covenant included in such Indenture solely for the benefit of a series of any
Debt Securities other than that series), continued for 90 days after written
notice as provided in such Indenture; (e) certain events in bankruptcy,
insolvency or reorganization involving the Company; and (f) any other Event of
Default provided with respect to Debt Securities of that series. (Section 501)
If an Event of Default with respect to Debt Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities of that
series by notice as provided in the applicable Indenture may declare the
principal amount (or, if the Debt Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all the Debt Securities of that series to be due
and payable immediately. At any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree for payment of money has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series may, under certain circumstances, rescind and annul such acceleration.
(Section 502)
Each Indenture provides that, subject to the duty of the Trustee during
default to act with the required standard of care, the Trustee is under no
obligation to exercise any of its rights or powers under such Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Sections 601, 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of any series have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Debt Securities of that series; provided,
however, that the Trustee is not obligated to take any action unduly prejudicial
to Holders not joining in such direction or involving the Trustee in personal
liability. (Section 512)
The Company is required to furnish to the Trustee annually a statement as
to the performance by the Company of its obligations under each Indenture and as
to any default in such performance. (Section 1006)
Defeasance. If so specified with respect to any particular series of Debt
Securities issued under an Indenture, the Company may discharge its indebtedness
and its obligations or certain of its obligations under such Indenture with
respect to such series by depositing funds or obligations issued or guaranteed
by the United States of America with the Trustee. (Sections 1301-1303)
Defeasance and Discharge. Each Indenture provides that, if so specified
with respect to the Debt Securities of any series issued under such Indenture
(other than convertible Subordinated Debt Securities), the Company will be
discharged from any and all obligations in respect of the Debt Securities of
such series (except for certain obligations relating to temporary Debt
Securities and exchange of Debt Securities, registration of transfer or exchange
of Debt Securities of such series, replacement of stolen, lost or mutilated Debt
Securities of such series, maintenance of paying agencies to hold moneys for
payment in trust and payment of additional amounts, if any, required in
consequence of United States withholding taxes imposed on payments to non-United
States persons) upon the deposit with the Trustee, in trust, of money and/or
U.S. Government Obligations which through the payment of interest and principal
in respect thereof in accordance with their terms will provide money in an
amount sufficient to pay the principal of (and premium, if any), and
8
<PAGE> 12
each installment of interest on, the Debt Securities of such series on the
Stated Maturity of such payments in accordance with the terms of such Indenture
and the Debt Securities of such series. (Sections 1302, 1304) Such a trust may
only be established if, among other things, the Company has delivered to the
Trustee an Opinion of Counsel to the effect that (i) the Company has received
from, or there has been published by, the Internal Revenue Service a ruling, or
(ii) since the date of such Indenture there has been a change in applicable
federal income tax law, in either case to the effect that, and based thereon
such Opinion of Counsel shall confirm that, the Holders of such series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit, defeasance and discharge, and will be subject to federal income
tax on the same amounts and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not occurred.
(Section 1304) In the event of any such defeasance and discharge of Debt
Securities of such series, Holders of such series would be entitled to look only
to such trust fund for payment of principal of and any premium and any interest
on their Debt Securities until Maturity.
Covenant Defeasance. Each Indenture also provides that, if so specified
with respect to the Debt Securities of any series issued thereunder, the Company
may omit to comply with certain restrictive covenants, but excluding (in the
case of the Subordinated Debt Indenture) any applicable obligation of the
Company respecting the conversion of Debt Securities of such series into Common
Stock, and any such omission shall not be an Event of Default with respect to
the Debt Securities of such series, upon the deposit with the Trustee, in trust,
of money and/or U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of (and premium, if
any), and each installment of interest on, the Debt Securities of such series on
the Stated Maturity of such payments in accordance with the terms of such
Indenture and the Debt Securities of such series. The obligations of the Company
under such Indenture and the Debt Securities of such series other than with
respect to such covenants shall remain in full force and effect. (Section 1303)
Such a trust may be established only if, among other things, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
such series will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and covenant defeasance and will be subject
to federal income tax on the same amounts and in the same manner and at the same
times as would have been the case if such deposit and covenant defeasance had
not occurred. (Section 1304)
Although the amount of money and U.S. Government Obligations on deposit
with the Trustee would be intended to be sufficient to pay amounts due on the
Debt Securities of such series at the time of their Stated Maturity, in the
event the Company exercises its option to omit compliance with the covenants
defeased with respect to the Debt Securities of any series as described above,
and the Debt Securities of such series are declared due and payable because of
the occurrence of any Event of Default, such amount may not be sufficient to pay
amounts due on the Debt Securities of such series at the time of the
acceleration resulting from such Event of Default. The Company shall in any
event remain liable for such payments as provided in the applicable Indenture.
Federal Income Tax Consequences. Under current United States federal income
tax law, defeasance and discharge would likely be treated as a taxable exchange
of Debt Securities to be defeased for an interest in the defeasance trust. As a
consequence, a holder would recognize gain or loss equal to the difference
between the holder's cost or other tax basis for such Debt Securities and the
value of the holder's interest in the defeasance trust, and thereafter would be
required to include in income the holder's share of the income, gain or loss of
the defeasance trust. Under current United States federal income tax law,
covenant defeasance would ordinarily not be treated as a taxable exchange of
such Debt Securities.
Meetings, Modification and Waiver. Modifications and amendments of any
Indenture may be made by the Company and the Trustee with the consent of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without consent of the
Holder of each Outstanding Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any Debt Security, (b) change the Redemption Date with respect to any Debt
Security, (c) reduce the principal amount of, or premium or interest on, any
Debt Security, (d) change any obligation of the Company to pay additional
amounts, (e) reduce the amount of principal of an Original Issue Discount
Security payable
9
<PAGE> 13
upon acceleration of the Maturity thereof, (f) change the coin or currency in
which any Debt Security or any premium or interest thereon is payable, (g)
change the redemption right of any Holder, (h) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security
or any conversion right with respect thereto, (i) reduce the percentage in
principal amount of Outstanding Securities of any series, the consent of whose
Holders is required for modification or amendment of such Indenture or for
waiver of compliance with certain provisions of such Indenture or for waiver of
certain defaults, (j) reduce the requirements contained in such Indenture for
quorum or voting, (k) change any obligation of the Company to maintain an office
or agency in the places and for the purposes required by such Indenture, (l)
adversely affect the right to convert Subordinated Debt Securities, if
applicable, (m) modify the provisions of the Subordinated Indenture with respect
to subordination of any Subordinated Debt Security in any manner adverse to the
Holder or (n) modify any of the above provisions. (Section 902)
The Subordinated Debt Indenture may not be amended to alter the
subordination of any outstanding Subordinated Debt Securities without the
consent of each holder of Senior Indebtedness (as defined below under
"-- Provisions Applicable Solely to Subordinated Debt Securities") then
outstanding that would be adversely affected thereby. (Section 907 of the
Subordinated Debt Indenture)
The Holders of a majority in aggregate principal amount of the Outstanding
Securities of each series may, on behalf of all Holders of that series, waive,
insofar as that series is concerned, compliance by the Company with certain
restrictive provisions of the Indenture under which such series has been issued.
(Section 1007) The Holders of a majority in aggregate principal amount of the
Outstanding Securities of each series may, on behalf of all Holders of that
series, waive any past default under the applicable Indenture with respect to
any Debt Securities of that series, except a default (a) in the payment of
principal of, or premium, if any, or any interest on any Debt Security of such
series or (b) in respect of a covenant or provision of such Indenture which
cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected. (Section 513)
Each Indenture provides that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver thereunder or are
present at a meeting of the Holders for quorum purposes, (i) the principal
amount of an Original Issue Discount Security that is deemed to be Outstanding
will be the amount of the principal that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof, and (ii) the
principal amount of a Debt Security denominated in a foreign currency or
currencies (including composite currencies) will be the U.S. dollar equivalent,
determined on the date of original issuance of such Debt Security, of the
principal amount of such Debt Security or, in the case of an Original Issue
Discount Security, the U.S. dollar equivalent, determined on the date of
original issuance of such Security, of the amount determined as provided in (i)
above. (Section 101)
Each Indenture contains provisions for convening meetings of the Holders of
a series if Debt Securities of that series are issuable as Bearer Securities.
(Section 1401) A meeting may be called at any time by the Trustee, and also,
upon request, by the Company or the Holders of at least 10% in aggregate
principal amount of the Outstanding Securities of such series, in any such case
upon notice given in accordance with "Notices" below. (Section 1402) Except for
any consent which must be given by the Holder of each Outstanding Security
affected thereby, as described above, any resolution presented at a meeting (or
adjourned meeting at which a quorum is present) may be adopted by the
affirmative vote of the Holders of a majority in aggregate principal amount of
the Outstanding Securities of that series; provided, however, that any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which may be made, given or taken by the
Holders of a specified percentage, which is less than a majority, in aggregate
principal amount of the Outstanding Securities of a series may be adopted at a
meeting (or adjourned meeting duly reconvened at which a quorum is present) by
the affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series. Any resolution
passed or decision taken at any meeting of Holders of any series duly held in
accordance with the applicable Indenture will be binding on all Holders of that
series and related coupons. The quorum at any meeting, and at any reconvened
meeting, will be Persons holding or representing a majority in aggregate
principal amount of the Outstanding Securities of a series. (Section 1404)
10
<PAGE> 14
Consolidation, Merger and Sale of Assets. The Company, without the consent
of the Holders of any of the outstanding Securities under either Indenture, may
consolidate with or merge into, or convey, transfer or lease its assets
substantially as an entirety to, any Person which is a corporation, partnership
or trust organized and validly existing under the laws of any domestic
jurisdiction, provided that any successor Person assumes the Company's
obligations on the Securities and under such Indenture, that after giving effect
to the transaction no Event of Default, and no event which, after notice or
lapse of time, would become an Event of Default, shall have occurred and be
continuing, and that certain other conditions are met. (Section 801)
Notices. Except as otherwise provided in the Indentures, notices to Holders
of Bearer Securities will be given by publication at least twice in a daily
newspaper in The City of New York and in such other city or cities as may be
specified in such Bearer Securities. Notices to Holders of Registered Securities
will be given by mail to the addresses of such Holders as they appear in the
Security Register. (Section 106)
Title. Title to any Bearer Securities (including Bearer Securities in
permanent global form) and any coupons appertaining thereto will pass by
delivery. The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security and the bearer of any coupon and the
registered owner of any Registered Security as the owner thereof (whether or not
such Debt Security or coupon shall be overdue and notwithstanding any notice to
the contrary) for the purpose of making payment and for all other purposes.
(Section 308)
Replacement of Securities and Coupons. Any mutilated Debt Security or a
Debt Security with a mutilated coupon appertaining thereto will be replaced by
the Company at the expense of the Holder upon surrender of such Debt Security to
the Trustee. Debt Securities or coupons that became destroyed, stolen or lost
will be replaced by the Company at the expense of the Holder upon delivery to
the Trustee of evidence of destruction, loss or theft thereof satisfactory to
the Company and the Trustee; in the case of any coupon which becomes destroyed,
stolen or lost, such coupon will be replaced by issuance of a new Debt Security
in exchange for the Debt Security to which such coupon appertains. In the case
of a destroyed, lost or stolen Debt Security or coupon, an indemnity
satisfactory to the Trustee and the Company may be required at the expense of
the Holder of such Debt Security or coupon before a replacement Debt Security
will be issued. (Section 306)
Governing Law. The Indentures and the Debt Securities and coupons will be
governed by, and construed in accordance with, the laws of the State of New
York. (Section 113)
Regarding the Trustee. The Trustee for each series of Debt Securities will
be identified in the applicable Prospectus Supplement.
Each Indenture contains certain limitations on the right of the Trustee,
should it become a creditor of the Company, to obtain payment of claims in
certain cases, or to realize for its own account on certain property received in
respect of any such claim as security or otherwise. (Section 613) The Trustee is
permitted to engage in certain other transactions; however, if it acquires any
conflicting interest (as described in the Indentures), it must eliminate such
conflict or resign. (Section 608)
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
Senior Debt Securities will be issued under a Senior Debt Indenture, and,
except as contemplated by the immediately following paragraph, each series will
rank pari passu as to the right of payment of principal and any premium and
interest with each other series issued thereunder. (Section 301)
If the Senior Debt Securities are issued on a senior subordinated basis,
the applicable Prospectus Supplement will describe the related subordination
provisions. All Senior Debt Securities, whether issued on a senior or senior
subordinated basis, will be senior in right of payment to each series of
Subordinated Debt Securities.
11
<PAGE> 15
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
Subordination. The Subordinated Debt Securities will be subordinate and
junior in right of payment, to the extent set forth in the Subordinated Debt
Indenture, to all Senior Indebtedness (as defined below) of the Company.
(Article Sixteen of the Subordinated Debt Indenture)
"Senior Indebtedness" is defined in Section 101 of the Subordinated Debt
Indenture as Indebtedness (as defined below) of the Company, whether outstanding
on the date of the Subordinated Debt Indenture or thereafter created, incurred,
assumed, guaranteed or in effect guaranteed by the Company, unless the
instrument creating or evidencing such Indebtedness provides that such
Indebtedness is not senior or superior, in right of payment, to the Subordinated
Debt Securities or to other Indebtedness which is pari passu with, or
subordinated to, the Subordinated Debt Securities; provided, however, that in no
event shall Senior Indebtedness include (a) Indebtedness of the Company owed or
owing to any Subsidiary of the Company or any officer, director or employee of
the Company or any Subsidiary of the Company except in respect of deferred
compensation in an aggregate amount not to exceed $10,000,000 at any one time,
(b) Indebtedness to trade creditors, (c) any liability for taxes owed or owing
by the Company, and (d) the Subordinated Debt Securities. "Indebtedness" is
defined in Section 101 of the Subordinated Debt Indenture as, with respect to
any Person, without duplication, (a) all liabilities and obligations, contingent
or otherwise, of any 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) representing the balance deferred and unpaid of the
purchase price of any property or services, except such as would constitute
trade payables to trade creditors 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 Obligation,
or (vi) evidenced by a letter of credit or a reimbursement obligation of such
Person with respect to any letter of credit; (b) all net obligations of such
Person under Interest Swap and Hedging Obligations; (c) all liabilities of
others of the kind described in the preceding clause (a) or (b) that such Person
has guaranteed or that is otherwise its legal liability and all obligations to
purchase, redeem or acquire any Capital Stock; and (d) any and all deferrals,
renewals, extensions, refinancings, refundings (whether direct or indirect) of
any liability of the kind described in any of the preceding clause (a), (b) or
(c), or this clause (d), whether or not between or among the same parties.
The Subordinated Debt Indenture provides that no payment may be made by the
Company on account of the principal of or any premium or interest on the
Subordinated Debt Securities, or to acquire any of the Subordinated Debt
Securities (including repurchases of Subordinated Debt Securities at the option
of the Holders) for cash or property (other than Junior Securities), or on
account of any redemption provisions of the Subordinated Debt Securities, (i)
upon the maturity of any Senior Indebtedness of the Company by lapse of time,
acceleration (unless waived) or otherwise, unless and until all principal of and
any premium and interest on such Senior Indebtedness are first paid in full (or
such payment is duly provided for), or (ii) in the event of default in the
payment of any principal of or any premium or interest on any Senior
Indebtedness when it becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration or otherwise (a "Payment Default"),
unless and until such Payment Default has been cured or waived or otherwise has
ceased to exist. (Section 1601 of the Subordinated Debt Indenture)
Upon (i) the happening of an event of default (other than a Payment
Default) that permits the holders of Senior Indebtedness or their representative
to accelerate its maturity and (ii) written notice of such event of default
given to the Company and the Trustee by the holders of at least 25% in aggregate
principal amount outstanding of such Senior Indebtedness or their representative
(a "Payment Notice"), then, unless and until such event of default has been
cured or waived or otherwise has ceased to exist, no payment (by set off or
otherwise) may be made by or on behalf of the Company on account of the
principal of or any premium or interest on the Subordinated Debt Securities, or
to acquire or repurchase any of the Subordinated Debt Securities for cash or
property, or on account of any redemption provisions of the Subordinated Debt
Securities, in any such case other than payments made with Junior Securities of
the Company. Notwithstanding the foregoing, unless (i) the Senior Indebtedness
in respect of which such event of default exists has been declared due and
payable in its entirety within 179 days after the Payment Notice is delivered as
set forth above (the "Payment Blockage Period"), and (ii) such declaration has
not been rescinded or waived, at the
12
<PAGE> 16
end of the Payment Blockage Period, the Company shall be required to pay all
sums not paid to the Holders of the Subordinated Debt Securities during the
Payment Blockage Period due to the foregoing prohibitions and to resume all
other payments as and when due on the Subordinated Debt Securities. Any number
of Payment Notices may be given; provided, however, that (i) not more than one
Payment Notice shall be given within a period of any 360 consecutive days and
(ii) no event of default that existed upon the date of such Payment Notice or
the commencement of such Payment Blockage Period (whether or not such event of
default is on the same issue of Senior Indebtedness) shall be made the basis for
the commencement of any other Payment Blockage Period. (Section 1601 of the
Subordinated Debt Indenture)
Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or
upon assignment for the benefit of creditors or any marshaling of assets or
liabilities, (i) the holders of all Senior Indebtedness will first be entitled
to receive payment in full (or have such payment duly provided for) before the
Holders are entitled to receive any payment on account of the principal of or
any premium or interest on the Subordinated Debt Securities (other than Junior
Securities) and (ii) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities (other than Junior
Securities) to which the Holders or the Trustee on behalf of the Holders would
be entitled (by set off or otherwise), except for the subordination provisions
contained in the Subordinated Debt Indenture, will be paid by the liquidating
trustee or agent or other Person making such a payment or distribution directly
to the holders of Senior Indebtedness or their representative to the extent
necessary to make payment in full of all such Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness. (Section 1601 of the Subordinated Debt
Indenture)
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company (other than Junior Securities) is received
by the Trustee or the Holders at a time when such payment or distribution is
prohibited by the foregoing provisions, such payment or distribution shall be
held in trust for the benefit of the holders of Senior Indebtedness, and shall
be paid or delivered by the Trustee or such Holders, as the case may be, to the
holders of the Senior Indebtedness remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness held or represented by
each, for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay or to provide for the payment of all such
Senior Indebtedness in full after giving effect to any concurrent payment and
distribution to the holders of such Senior Indebtedness. (Section 1601 of the
Subordinated Debt Indenture)
No provisions contained in the Subordinated Debt Indenture or the
Subordinated Debt Securities will affect the obligation of the Company, which is
absolute and unconditional, to pay principal of and any premium and interest on
the Subordinated Debt Securities as and when the same shall become due and
payable. The subordination provisions of the Subordinated Debt Indenture and the
Subordinated Debt Securities will not prevent the occurrence of any Event of
Default under the Subordinated Debt Indenture or limit the rights of the Trustee
or any Holder, subject to the three preceding paragraphs, to pursue any other
rights or remedies with respect to the Subordinated Debt Securities. (Sections
501 and 1601 of the Subordinated Debt Indenture)
The Prospectus Supplement respecting any series of Subordinated Debt
Securities will set forth any subordination provisions applicable to such series
in addition to or different from those described above.
By reason of such subordination, in the event of the liquidation,
bankruptcy, reorganization, insolvency, receivership or similar proceeding
involving the Company or an assignment for the benefit of creditors of the
Company or any of its subsidiaries or a marshaling of assets or liabilities of
the Company or its subsidiaries, holders of Senior Indebtedness and holders of
other obligations of the Company that are not subordinated to Senior
Indebtedness may receive more, ratably, than holders of the Subordinated Debt
Securities.
13
<PAGE> 17
Conversion. The Subordinated Debt Indenture may provide for a right of
conversion of Subordinated Debt Securities into Common Stock (or cash in lieu
thereof). (Sections 301 and 1501 of the Subordinated Debt Indenture) The
following provisions will apply to Debt Securities that are convertible
Subordinated Debt Securities unless otherwise provided in the Prospectus
Supplement for such Debt Securities.
The Holder of any convertible Subordinated Debt Securities will have the
right exercisable at any time prior to the close of business on the second
Business Day prior to their Stated Maturity, unless previously redeemed or
otherwise purchased by the Company, to convert such Subordinated Debt Securities
into shares of Common Stock at the Conversion Price set forth in the Prospectus
Supplement, subject to adjustment. (Section 1502 of the Subordinated Debt
Indenture) The Holder of convertible Subordinated Debt Securities may convert
any portion thereof which is $1,000 in principal amount or any integral multiple
thereof. (Section 1502 of the Subordinated Debt Indenture)
In certain events, the Conversion Price will be subject to adjustment as
set forth in the Subordinated Debt Indenture. Such events include: (a) any
payment of a dividend (or other distribution) payable in Common Stock on any
class of Capital Stock of the Company, (b) any subdivision, combination or
reclassification of Common Stock, (c) any issuance to all holders of Common
Stock of rights, options or warrants entitling them to subscribe for or purchase
Common Stock at less than the then current market price (as determined in
accordance with the Subordinated Debt Indenture) of Common Stock; provided,
however, that if such options or warrants are only exercisable upon the
occurrence of certain triggering events, then the Conversion Price will not be
adjusted until such triggering events occur, (d) any distribution to all holders
of Common Stock of evidences of indebtedness, shares of Capital Stock other than
Common Stock, cash or other assets (including securities, but excluding those
dividends, rights, options, warrants and distributions referred to above and
excluding regular dividends and distributions paid exclusively in cash), (e) any
distribution consisting exclusively of cash (excluding any cash portion of
distributions referred to in (d) above, or cash distributed upon a merger or
consolidation to which the third succeeding paragraph applies) to all holders of
Common Stock in an aggregate amount that, combined together with (i) all other
such all-cash distributions made within the then preceding 12 months in respect
of which no adjustment has been made and (ii) any cash and the fair market value
of other consideration paid or payable in respect of any tender offer by the
Company or any of its Subsidiaries for Common Stock concluded within the
preceding 12 months in respect of which no adjustment has been made, exceeds 15%
of the Company's market capitalization (defined as being the product of the then
current market price of the Common Stock times the number of shares of Common
Stock then outstanding) on the record date of such distribution, and (f) the
completion of a tender or exchange offer made by the Company or any of its
Subsidiaries for Common Stock that involves an aggregate consideration that,
together with (i) any cash and the fair market value of other consideration
payable in a tender or exchange offer by the Company or any of its Subsidiaries
for Common Stock expiring within the 12 months preceding the expiration of such
tender or exchange offer in respect of which no adjustment has been made and
(ii) the aggregate amount of any such all-cash distributions referred to in (e)
above to all holders of Common Stock within the 12 months preceding the
expiration of such tender or exchange offer in respect of which no adjustments
have been made, exceeds 15% of the Company's market capitalization on the
expiration of such tender offer. No adjustment of the Conversion Price will be
required to be made until the cumulative adjustments amount to 1.0% or more of
the Conversion Price as last adjusted. The Company reserves the right to make
such reductions in the Conversion Price in addition to those required in the
foregoing provisions as it considers to be advisable in order that any event
treated for federal income tax purposes as a dividend of stock or stock rights
will not be taxable to the recipients. In the event the Company elects to make
such a reduction in the Conversion Price, the Company will comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder if and to the extent that such laws and regulations
are applicable in connection with the reduction of the Conversion Price.
(Section 1504 of the Subordinated Debt Indenture)
In the event that the Company distributes rights or warrants (other than
those referred to in (c) in the preceding paragraph) pro rata to holders of
Common Stock, so long as any such rights or warrants have not expired or been
redeemed by the Company, the Holder of any convertible Subordinated Debt
Security surrendered for conversion will be entitled to receive upon such
conversion, in addition to the shares of
14
<PAGE> 18
Common Stock issuable upon such conversion (the "Conversion Shares"), a number
of rights or warrants to be determined as follows: (i) if such conversion occurs
on or prior to the date for the distribution to the holders of rights or
warrants of separate certificates evidencing such rights or warrants (the
"Distribution Date"), the same number of rights or warrants to which a holder of
a number of shares of Common Stock equal to the number of Conversion Shares is
entitled at the time of such conversion in accordance with the terms and
provisions of and applicable to the rights or warrants, and (ii) if such
conversion occurs after such Distribution Date, the same number of rights or
warrants to which a holder of the number of shares of Common Stock into which
such Subordinated Debt Security was convertible immediately prior to such
Distribution Date would have been entitled on such Distribution Date in
accordance with the terms and provisions of and applicable to the rights or
warrants. The Conversion Price will not be subject to adjustment on account of
any declaration, distribution or exercise of such rights or warrants. (Section
1504 of the Subordinated Debt Indenture)
Fractional shares of Common Stock will not be issued upon conversion, but,
in lieu thereof, the Company will pay a cash adjustment based on the then
current market price for the Common Stock. (Section 1503 of the Subordinated
Debt Indenture) Upon conversion, no adjustments will be made for accrued
interest or dividends, and therefore convertible Subordinated Debt Securities
surrendered for conversion between the record date for an interest payment and
the Interest Payment Date (except convertible Subordinated Debt Securities
called for redemption on a redemption date during such period) must be
accompanied by payment of an amount equal to the interest thereon which the
Holder is to receive. (Sections 1504 and 1502 of the Subordinated Debt
Indenture)
In the case of any reclassification, consolidation or merger of the Company
with or into another Person or any merger of another Person with or into the
Company (with certain exceptions), or in case of any conveyance, transfer or
lease of the assets of the Company substantially as an entirety, each
convertible Subordinated Debt Security then outstanding will, without the
consent of any Holder thereof, become convertible only into the kind and amount
of securities, cash and other property receivable upon such reclassification,
consolidation, merger, conveyance, transfer or lease by a holder of the number
of shares of Common Stock into which such Subordinated Debt Security was
convertible immediately prior thereto, after giving effect to any adjustment
event, who failed to exercise any rights of election and received per share the
kind and amount received per share by a plurality of non-electing shares.
(Section 1505 of the Subordinated Debt Indenture)
15
<PAGE> 19
DESCRIPTION OF CAPITAL STOCK
Pursuant to the Company's Second Restated Certificate of Incorporation, as
amended ("Certificate of Incorporation"), the Company's authorized capital stock
consists of 100,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock. As of July 31, 1998, the Company had 36,191,985 shares of Common Stock
issued and outstanding and no shares of Preferred Stock issued and outstanding.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share in the election
of directors and on all other matters submitted to a vote of common stockholders
and do not have cumulative voting rights.
Holders of Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the Company's Board of Directors out of funds legally
available therefore, subject to any preferential dividend rights of outstanding
preferred stock. The Company does not intend to pay cash dividends on the Common
Stock in the foreseeable future. Upon the liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to receive ratably the
net assets of the Company available after payment of all debts and other
liabilities, subject to the prior rights of any outstanding preferred stock.
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights.
PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain terms of a series of the Preferred
Stock offered by any Prospectus Supplement will be described in the Prospectus
Supplement relating to such series of the Preferred Stock. If so indicated in
the Prospectus Supplement, the terms of any such series may differ from the
terms set forth below. The following description of the Preferred Stock
summarizes certain provisions of the Company's Certificate of Incorporation
filed as an exhibit to the Registration Statement to which this Prospectus
relates and is subject to and qualified in its entirety by reference to the
statements of designations that will be filed with the Commission promptly after
the offering of such series of Preferred Stock.
General. Under the Company's Certificate of Incorporation, the Board of
Directors is authorized, without further stockholder action, to provide for the
issuance of up to 5,000,000 shares of Preferred Stock in one or more series,
with such voting powers, or without voting powers, and with such designations,
preferences and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be set forth in
resolutions providing for the issuance thereof adopted by the Board of
Directors. As of the date of this Prospectus, no shares of Preferred Stock are
outstanding or designated as to series. It is not possible to state the actual
effect of the authorization and issuance of a new series of Preferred Stock upon
the rights of holders of the Common Stock and other series of Preferred Stock
unless and until the Board of Directors determines the attributes of such new
series of Preferred Stock and the specific rights of its holders. Such effects
might include, however, (i) restrictions on dividends on Common Stock and other
series of Preferred Stock if dividends on such new series of Preferred Stock
have not been paid; (ii) dilution of the voting power of Common Stock and other
series of Preferred Stock to the extent that such new series of Preferred Stock
has voting rights, or to the extent that any such new series of Preferred Stock
is convertible into Common Stock; (iii) dilution of the equity interest of
Common Stock and other series of Preferred Stock; and (iv) limitation on the
right of holders of Common Stock and other series of Preferred Stock to share in
the Company's assets upon liquidation until satisfaction of any liquidation
preference attributable to such new series of Preferred Stock. While the ability
of the Company to issue Preferred Stock provides flexibility in connection with
possible acquisitions and other corporate purposes, its issuance could be used
to impede an attempt by a third party to acquire a majority of the outstanding
voting stock of the Company.
The Preferred Stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the Prospectus Supplement relating to a particular
series of the Preferred Stock, each series of the Preferred Stock will rank on a
parity as to dividends and distributions in the event of a liquidation with each
other series of the
16
<PAGE> 20
Preferred Stock, if any. Holders of Preferred Stock will have no preemptive
rights to subscribe for or purchase shares of capital stock.
The Preferred Stock will have the dividend, liquidation and voting rights
set forth below unless otherwise provided in the Prospectus Supplement relating
to a particular series of the Preferred Stock. Reference is made to the
Prospectus Supplement relating to the particular series of the Preferred Stock
offered thereby for specific terms, including: (i) the designation of such
Preferred Stock, the number of shares offered and the liquidation value thereof;
(ii) the price at which such Preferred Stock will be issued; (iii) the dividend
rate (or method of calculation), the dates on which dividends shall be payable,
whether such dividends shall be cumulative or noncumulative and, if cumulative,
the dates from which dividends shall commence to accumulate; (iv) the
liquidation preference thereof; (v) any redemption or sinking fund provisions;
(vi) any conversion or exchange provisions of such Preferred Stock; and (vii)
any additional rights, preferences, qualifications, limitations and restrictions
of such Preferred Stock.
Dividend Rights. The holders of Preferred Stock of each series will be
entitled to receive, in preference to the holders of Common Stock, when and as
declared by the Board of Directors of the Company out of assets legally
available therefor, cash dividends, which may be cumulative for each series or
non-cumulative, at the annual rate for such series fixed by the Board of
Directors in creating such series, payable quarterly on such dates as may be so
fixed by the Board of Directors. No dividends may be paid upon the Common Stock
if the Company is in arrears in paying dividends on any series of Preferred
Stock for which dividends are cumulative. Accumulations of dividends on the
Preferred Stock will not bear interest.
Liquidation Rights. In the event of a liquidation, dissolution or winding
up of the Company, the holders of each series of Preferred Stock will be
entitled to share equally and ratably in the assets available for distribution
after payment of all liabilities, prior to any distribution to the holders of
Common Stock, in each case up to the liquidation amount fixed by the Board of
Directors in creating such series, plus an amount equal to all dividends accrued
and unpaid thereon up to the distribution date.
Voting Rights. The holders of the Preferred Stock will be entitled to one
vote per share, and the holders of all series of Preferred Stock shall vote
together with the holders of Common Stock as one class, except as expressly
required by applicable law.
DEPOSITARY SHARES
General. The Company may, at its option, elect to offer fractional shares
of Preferred Stock, rather than full shares of Preferred Stock. In the event
such option is exercised, the Company will issue to the public receipts for
Depositary Shares, each of which will represent a fraction (to be set forth in
the Prospectus Supplement relating to a particular series of Preferred Stock) of
a share of a particular series of Preferred Stock as described below.
The shares of any series of Preferred Stock represented by Depositary
Shares will be deposited under a Deposit Agreement (the "Deposit Agreement")
between the Company and a bank or trust company selected by the Company having
its principal office in the United States and having a combined capital and
surplus of at least $50,000,000 (the "Depositary"). Subject to the terms of the
Deposit Agreement, each owner of a Depositary Share will be entitled, in
proportion to the applicable fraction of a share of Preferred Stock represented
by such Depositary Share, to all the rights and preferences of the Preferred
Stock represented thereby (including dividend, voting, redemption and
liquidation rights).
The Depositary Shares will be evidenced by depositary receipts issued
pursuant to the Deposit Agreement ("Depositary Receipts"). Depositary Receipts
will be distributed to those persons purchasing the fractional shares of
Preferred Stock in accordance with the terms of the offering. Copies of the
forms of Deposit Agreement and Depositary Receipt are filed as exhibits to the
Registration Statement of which this Prospectus is a part, and the following
summary is qualified in its entirety by reference to such exhibits.
If required by law or applicable securities exchange rules, engraved
Depositary Receipts will be prepared. Pending the preparation of definitive
engraved Depositary Receipts, the Depositary may, upon the written order of the
Company, issue temporary Depositary Receipts substantially identical to (and
entitling the
17
<PAGE> 21
holders thereof to all the rights pertaining to) the definitive Depositary
Receipts but not in definitive form. Definitive Depositary Receipts will be
prepared thereafter without unreasonable delay, and temporary Depositary
Receipts will be exchangeable for definitive Depositary Receipts at the
Company's expense.
Dividends and Other Distributions. The Depositary will distribute all cash
dividends or other cash distributions received in respect of the Preferred Stock
to the record holders of Depositary Shares relating to such Preferred Stock in
proportion to the number of such Depositary Shares owned by such holders.
In the event of a distribution other than in cash, the Depositary will
distribute property received by it to the record holders of Depositary Shares
entitled thereto, unless the Depositary determines that it is not feasible to
make such distribution, in which case the Depositary may, with the approval of
the Company, sell such property and distribute the net proceeds from such sale
to such holders.
Redemption of Depositary Shares. If a series of Preferred Stock represented
by Depositary Shares is subject to redemption, the Depositary Shares will be
redeemed from the proceeds received by the Depositary resulting from the
redemption, in whole or in part, of such series of Preferred Stock held by the
Depositary. The redemption price per Depositary Share will be equal to the
applicable fraction of the redemption price per share payable with respect to
such series of the Preferred stock. Whenever the Company redeems shares of
Preferred Stock held by the Depositary, the Depositary will redeem as of the
same redemption date the number of Depositary Shares representing the shares of
Preferred Stock so redeemed. If fewer than all the Depositary Shares are to be
redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata as may be determined by the Depositary.
Voting the Preferred Stock. Upon receipt of notice of any meeting at which
the holders of the Preferred Stock are entitled to vote, the Depositary will
mail the information contained in such notice of meeting to the record holders
of the Depositary Shares relating to such Preferred Stock. Each record holder of
such Depositary Shares on the record date (which will be the same date as the
record date for the Preferred Stock) will be entitled to instruct the Depositary
as to the exercise of the voting rights pertaining to the amount of the
Preferred Stock represented by such holder's Depositary Shares. The Depositary
will endeavor, insofar as practicable, to vote the amount of the Preferred Stock
represented by such Depositary Shares in accordance with such instructions, and
the Company will agree to take all action that may be deemed necessary by the
Depositary in order to enable the Depositary to do so. The Depositary will
abstain from voting shares of the Preferred Stock to the extent it does not
receive specific instructions from the holders of Depositary Shares representing
such Preferred Stock.
Amendment and Termination of the Depositary Agreement. The form of
Depositary Receipt evidencing the Depositary Shares and any provision of the
Deposit Agreement may at any time be amended by agreement between the Company
and the Depositary. However, any amendment that materially and adversely alters
the rights of the holders of Depositary Shares will not be effective unless such
amendment has been approved by the holders of at least a majority of the
Depositary Shares then outstanding. The Deposit Agreement may be terminated by
the Company or the Depositary only if (i) all outstanding Depositary Shares have
been redeemed or (ii) there has been a final distribution in respect of the
Preferred Stock in connection with any liquidation, dissolution or winding up of
the Company and such distribution has been distributed to the holders of
Depositary Receipts.
Charges of Depositary. The Company will pay all transfer and other taxes
and governmental charges arising solely from the existence of the depositary
arrangements. The Company will pay charges of the Depositary in connection with
the initial deposit of the Preferred Stock and any redemption of the Preferred
Stock. Holders of Depositary Receipts will pay other transfer and other taxes
and governmental charges and such other charges, including a fee for the
withdrawal of shares of Preferred Stock upon surrender of Depositary Receipts,
as are expressly provided in the Deposit Agreement to be for their accounts.
Withdrawal of Preferred Stock. Upon surrender of Depositary Receipts at the
principal office of the Depositary, subject to the terms of the Deposit
Agreement, the owner of the Depositary Shares evidenced thereby is entitled to
delivery of the number of whole shares of Preferred Stock and all money and
other property, if any, represented by such Depositary Shares. Partial shares of
Preferred Stock will not be issued. If
18
<PAGE> 22
the Depositary Receipts delivered by the holder evidence a number of Depositary
Shares in excess of the number of Depositary Shares representing the number of
whole shares of Preferred Stock to be withdrawn, the Depositary will deliver to
such holder at the same time a new Depositary Receipt evidencing such excess
number of Depositary Shares. Holders of Preferred Stock thus withdrawn will not
thereafter be entitled to deposit such shares under the Deposit Agreement or to
receive Depositary Receipts evidencing Depositary Shares therefor.
Miscellaneous. The Depositary will forward to holders of Depository
Receipts all reports and communications from the Company that are delivered to
the Depositary and that the Company is required to furnish to the holders of the
Preferred Stock.
Neither the Depositary nor the Company will be liable if it is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. The obligations of the Company and the
Depositary under the Deposit Agreement will be limited to performance in good
faith of their duties thereunder and they will not be obligated to prosecute or
defend any legal proceeding in respect of any Depositary Shares or Preferred
Stock unless satisfactory indemnity is furnished. They may rely upon written
advice of counsel or accountants, or upon information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Receipts or other
persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary. The Depositary may resign at any
time by delivering to the Company notice of its election to do so, and the
Company may at any time remove the Depositary, any such resignation or removal
to take effect upon the appointment of a successor Depositary and its acceptance
of such appointment. Such successor Depositary must be appointed within 60 days
after delivery of the notice of resignation or removal and must be a bank or
trust company having its principal office in the United States and having a
combined capital and surplus of at least $50,000,000.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services L.L.C.
ANTI-TAKEOVER PROVISIONS
The Certificate of Incorporation and the Company's Restated Bylaws (the
"Bylaws") of the Company and the Delaware General Corporation Law (the "DGCL")
include a number of provisions which may have the effect of encouraging persons
considering unsolicited tender offers or other unilateral takeover proposals to
negotiate with the Company's Board of Directors rather than pursue
non-negotiated takeover attempts.
Stockholder Action by Written Consent. Under the DGCL, unless the
certificate of incorporation of a corporation specifies otherwise, any action
that could be taken by stockholders at an annual or special meeting may be taken
without a meeting and without notice to or a vote of other stockholders if a
consent in writing is signed by the holders of outstanding stock having voting
power that would be sufficient to take such action at a meeting at which all
outstanding shares were present and voted. The Certificate of Incorporation and
the Bylaws of the Company provide that stockholder action may be taken in
writing by the consent of holders of not less than 66 2/3% of the outstanding
shares entitled to vote at a meeting of stockholders. As a result, stockholders
may not act upon any matter except at a duly called meeting or by the written
consent of holders of 66 2/3% or more of the outstanding shares entitled to
vote.
Supermajority Vote Required for Certain Transactions. The affirmative vote
of the holders of at least 66 2/3% of the outstanding shares of Common Stock is
required to approve any merger or consolidation of the Company or any sale or
transfer of all or substantially all of the assets of the Company.
Blank Check Preferred Stock. The Certificate of Incorporation of the
Company authorizes blank check Preferred Stock. The Board of Directors of the
Company can set the voting, redemption, conversion and other rights relating to
such Preferred Stock and can issue such stock in either a private or public
transaction. The issuance of Preferred Stock, while providing desired
flexibility in connection with possible acquisitions and other corporate
purposes, could adversely affect the voting power of holders of Common Stock and
the
19
<PAGE> 23
likelihood that such holders will receive dividend payments and payments upon
liquidation and could have the effect of delaying, deferring or preventing a
change in control of the Company.
Delaware Takeover Statute. The Company is subject to Section 203 of the
DGCL. In general, Section 203 prevents an interested stockholder (i.e., any
person owning 15% or more of the Company's outstanding voting stock) from
engaging in a business combination (as defined below) with a Delaware
corporation for a period of three years from the time such person becomes an
interested stockholder of such corporation, unless (i) before such person became
an interested stockholder, the board of directors of the corporation approved
the business combination or the transaction in which the interested stockholder
became an interested stockholder; (ii) upon consummation of the transaction that
resulted in the interested stockholder's becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding stock held by
directors who are also officers of the corporation and stock held by certain
employee stock plans; or (iii) on or subsequent to the time of the transaction
in which such person became an interested stockholder, the business combination
is approved by the board of directors of the corporation and authorized at a
meeting of stockholders by the affirmative vote of the holders of at least
two-thirds of the outstanding voting stock of the corporation not owned by the
interested stockholder.
Section 203 defines a "business combination" to include (i) any merger or
consolidation involving a corporation and an interested stockholder, (ii) any
sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving an interested stockholder, (iii) subject to certain
exceptions, any transaction which results in the issuance or transfer by the
corporation of any stock of the corporation to an interested stockholder, (iv)
any transaction involving the corporation which has the effect of increasing the
proportionate share of the stock of any class or series of the corporation
beneficially owned by the interested stockholder or (v) the receipt by an
interested stockholder of any loans, guarantees, pledges or other financial
benefits provided by or through the corporation. In general, Section 203 defines
an "interested stockholder" as any entity or person beneficially owning 15% or
more of the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by such entity or person.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase of Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or other
securities. Securities Warrants may be issued independently or together with
Debt Securities, Preferred Stock, Depositary Shares or Common Stock offered by
any Prospectus Supplement and may be attached to or separate from any such
Offered Securities. Each series of Securities Warrants will be issued under a
separate warrant agreement (a "Securities Warrant Agreement") to be entered into
between the Company and a bank or trust company, as warrant agent (the
"Securities Warrant Agent"), all as set forth in the Prospectus Supplement
relating to the particular issue of Securities Warrants. The Securities Warrant
Agent will act solely as an agent of the Company in connection with the
Securities Warrants and will not assume any obligation or relationship of agency
or trust for or with any holders of Securities Warrants or beneficial owners of
Securities Warrants. The following summary of certain provisions of the
Securities Warrants does not purport to be complete and is subject to, and is
qualified in its entirety by reference to, all provisions of the Securities
Warrant Agreements.
Reference is made to the Prospectus Supplement relating to the particular
issue of Securities Warrants offered thereby for the terms of and information
relating to such Securities Warrants, including, where applicable: (i) the
designation, aggregate principal amount, currencies, denominations, and terms of
the series of Debt Securities purchasable upon exercise of Securities Warrants
to purchase Debt Securities and the price at which such Debt Securities may be
purchased upon such exercise; (ii) the number of shares of Common Stock
purchasable upon the exercise of Securities Warrants to purchase Common Stock
and the price at which such number of shares of Common Stock may be purchased
upon such exercise; (iii) the number of shares and series of Preferred Stock
and/or Depositary Shares purchasable upon the exercise of Securities Warrants to
purchase Preferred Stock and the price at which such number of shares of such
series of Preferred Stock and/or Depositary Shares may be purchased upon such
exercise; (iv) the designation and number of
20
<PAGE> 24
units of other securities purchasable upon the exercise of Securities Warrants
to purchase other securities and the price at which such number of units of such
other securities may be purchased upon such exercise; (v) the date on which the
right to exercise such Securities Warrants shall commence and the date on which
such right shall expire (the "Expiration Date"); (vi) United States Federal
income tax consequences applicable to such Securities Warrants; (vii) the amount
of Securities Warrants outstanding as of the most recent practicable date; and
(viii) any other terms of such Securities Warrants. Securities Warrants will be
issued in registered form only. The exercise price for Securities Warrants will
be subject to adjustment in accordance with the applicable Prospectus
Supplement.
Each Securities Warrant will entitle the holder thereof to purchase such
principal amount of Debt Securities or such number of shares of Preferred Stock,
Depositary Shares, Common Stock or other securities at such exercise price as
shall in each case be set forth in, or calculable from, the Prospectus
Supplement relating to the Securities Warrants, which exercise price may be
subject to adjustment upon the occurrence of certain events as set forth in such
Prospectus Supplement. After the close of business on the Expiration Date (or
such later date to which such Expiration Date may be extended by the Company),
unexercised Securities Warrants will become void. The place or places where, and
the manner in which, Securities Warrants may be exercised shall be specified in
the Prospectus Supplement relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase Debt
Securities, Preferred Stock, Depositary Shares, Common Stock or other
securities, holders of such Securities Warrants will not have any of the rights
of holders of Debt Securities, Preferred Stock, Depositary Shares, Common Stock
or other securities, as the case may be, purchasable upon such exercise,
including the right to receive payments of principal of, premium, if any, or
interest, if any, on the Debt Securities purchasable upon such exercise or to
enforce covenants in the applicable Indenture, or to receive payments of
dividends, if any, on the Preferred Stock, Depositary Shares or Common Stock
purchasable upon such exercise, or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
GENERAL
Any of the Securities offered hereby may be sold in any one or more of the
following ways from time to time: (i) to or through underwriters; (ii) through
dealers; (iii) directly to other purchasers or (iv) through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Securities, underwriters may receive
compensation from the Company or purchasers of Securities for whom they may act
as agents, in the form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of Securities may be
deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of Securities by them may be
deemed to be underwriting discounts and commissions under the Securities Act.
Any such person who may be deemed to be an underwriter will be identified, and
any such compensation received from the Company will be described, in the
Prospectus Supplement.
During and after an offering through underwriters, such underwriters may
purchase and sell the Securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the Securities sold for their
account may be reclaimed by the syndicate if such Securities are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Securities,
which may be higher than the price that might otherwise prevail in the open
market, and, if commenced, may be discontinued at any time.
21
<PAGE> 25
Except for Common Stock, all Securities, when first issued, will have no
established trading market. Any underwriters or agents to or through whom such
Securities are sold by the Company for public offering and sale may make a
market in such Securities, but such underwriters or agents will not be obligated
to do so and may discontinue any market making at any time without notice. No
assurance can be given as to the liquidity of the trading market for any such
Securities.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company against or contribution toward
certain liabilities, including liabilities under the Securities Act.
DELAYED DELIVERY ARRANGEMENT
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others, but in all cases will be subject to the approval of the
Company. The obligations of any purchaser under any such contract will be
subject to the condition that the purchase of the Debt Securities shall not at
the time of delivery be prohibited under the laws of any jurisdiction to which
such purchaser is subject. The underwriters and such agents will not have any
responsibility in respect of the validity or performance of such contracts.
VALIDITY OF SECURITIES
The validity of the Securities will be passed upon for the Company by
Vinson & Elkins L.L.P., Houston, Texas, and will be passed upon for any agents,
dealers or underwriters by Baker & Botts, L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements of Newfield Exploration Company
appearing in Newfield
Exploration Company's Annual Report (Form 10-K) for the year ended December 31,
1997, which is incorporated in this Prospectus and Registration Statement by
reference, have been audited by PricewaterhouseCoopers LLP, independent public
accountants, as set forth in their report thereon included therein and
incorporated by reference herein. Such consolidated financial statements have
been incorporated by reference herein in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
Certain information included or incorporated by reference in this
Prospectus relating to the Company's proved oil and gas reserves and future net
cash flows therefrom is derived from estimates prepared by Ryder Scott Company,
Petroleum Engineers, and is incorporated by reference herein in reliance upon
such firm as experts with respect to such matters.
22
<PAGE> 26
PROSPECTUS
NEWFIELD FINANCIAL TRUST I
NEWFIELD FINANCIAL TRUST II
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY, AND CONVERTIBLE INTO COMMON STOCK
OF,
NEWFIELD EXPLORATION COMPANY
---------------------
Newfield Financial Trust I and Newfield Financial Trust II, each a
statutory business trust created under the laws of the State of Delaware (each
individually, an "Issuer" and, collectively, the "Issuers"), may each offer and
sell, pursuant to this Prospectus, preferred securities representing undivided
beneficial ownership interests in the assets of such Issuer ("Preferred
Securities"). Newfield Exploration Company ("Newfield" or the "Company") will
directly or indirectly own all of the common securities representing undivided
beneficial ownership interests in the assets of the Issuers ("Common Securities"
and, together with the Preferred Securities, "Trust Securities"). Each Issuer
exists for the sole purpose of issuing the Trust Securities and investing the
proceeds in subordinated debentures ("Debentures") to be issued by the Company
to the applicable Issuer. The Debentures will be convertible into shares of
common stock, par value $.01 per share ("Common Stock"), of the Company. The
Company will guarantee ("Guarantees") to the extent set forth herein or in a
Prospectus Supplement (as defined below) the payment obligations of the Issuers
under their respective Preferred Securities. The aggregate initial offering
price of the Preferred Securities that may be sold pursuant to this Prospectus
will not exceed $275,000,000 or, if applicable, the equivalent thereof in any
other currency or currency unit. Preferred Securities, Debentures and Guarantees
are sometimes collectively referred to herein as "Securities." If any Securities
are offered, they will be offered in amounts, at prices and on terms to be
determined in light of market conditions at the time of sale.
The specific terms of any Securities to be issued will be set forth in a
supplement to this Prospectus (a "Prospectus Supplement"), which will be
delivered together with this Prospectus, including, where applicable, (i) with
respect to Preferred Securities, the specific title, aggregate amount, stated
liquidation preference, number of securities, the rate of payment of periodic
distributions or method of calculating such rate, applicable extension period or
distribution deferral terms, if any, conversion rights, and any terms of
redemption and (ii) with respect to Debentures, the specific designation,
aggregate principal amount, maturity, rate or rates (or method of determining
the same) and time or times for the payment of interest, conversion terms, any
terms for optional or mandatory redemption or repurchase, or payment of
additional amounts or any sinking fund provisions, the designation of the
trustee acting under the applicable indenture, and any other specific terms of
such Debentures. The Prospectus Supplement will also contain information
regarding the public offering price, the net proceeds and, where applicable, the
United States federal income tax considerations relating to the Securities
covered by the Prospectus Supplement and a description of certain factors that
should be considered in connection with an investment in the Securities covered
by the Prospectus Supplement.
Preferred Securities may be sold directly by the applicable Issuer to
investors, through agents designated from time to time or to or through
underwriters or dealers. See "Plan of Distribution." If any agents of the
Company or the applicable Issuer, or any underwriters, are involved in the sale
of any Securities in respect of which this Prospectus is being delivered, the
names of such agents or underwriters and any applicable commissions or discounts
will be set forth in a Prospectus Supplement.
---------------------
The Common Stock is traded on the New York Stock Exchange (the "NYSE")
under the symbol "NFX." The Prospectus Supplement will state whether the
Securities offered thereby will be listed on a securities exchange.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
---------------------
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS SEPTEMBER 4, 1998.
<PAGE> 27
AVAILABLE INFORMATION
The Company is subject to the information requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington,
D.C. 20549 and at the following Regional Offices of the Commission: Chicago
Regional Office, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511 and New York Regional Office, Seven World Trade Center,
Suite 1300, New York, New York 10048. Copies of such material may be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a World
Wide Web site on the Internet at http://www.sec.gov that contains reports, proxy
and information statements and other information regarding registrants that file
electronically with the Commission. The Company's Common Stock is traded on the
NYSE and reports, proxy statements and other information concerning the Company
may be inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement on Form S-3
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Company and the Issuers with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"). This Prospectus omits
certain of the information contained in the Registration Statement, and
reference is hereby made to the Registration Statement for further information
with respect to the Company and the Issuers and the securities offered hereby.
Any statements contained herein concerning the provisions of any document filed
as an exhibit to the Registration Statement or otherwise filed with the
Commission are not necessarily complete, and in each instance reference is made
to the copy of such document so filed. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission under the Exchange Act (File No. 1-12534), are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1997;
(b) Quarterly Report on Form 10-Q for the quarters ended March 31,
1998 and June 30, 1998;
(c) Current Report on Form 8-K filed with the Commission on August 28,
1998; and
(d) description of the Common Stock contained in the Company's
Registration Statement on Form 8-A filed on November 4, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities pursuant hereto shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such document. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein, or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein, modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy of
any or all of the documents that are incorporated by reference in this
Prospectus (other than exhibits to such documents, unless such exhibits are
specifically incorporated by reference into such documents). Written or oral
requests for such copies should be directed to James P. Ulm, II, Treasurer,
Newfield Exploration Company, 363 N. Sam Houston Parkway E., Suite 2020,
Houston, Texas 77060; telephone: (281) 847-6000.
PS-2
<PAGE> 28
FORWARD-LOOKING STATEMENTS
This Prospectus includes "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act. All
statements other than statements of historical facts included in this document,
including statements regarding business strategy and other plans and objectives
for future operations, are forward-looking statements. Although the Company
believes that the expectations reflected in such forward-looking statements are
reasonable, such statements are based upon assumptions and anticipated results
that are subject to numerous uncertainties. Actual results may vary
significantly from those anticipated due to many factors, including drilling
results, oil and gas prices, industry conditions, the prices of goods and
services, the availability of drilling rigs and other support services, the
availability of capital resources and the other factors set forth in the
Company's filings incorporated by reference herein. In addition, the drilling of
oil and gas wells and the production of hydrocarbons are subject to governmental
regulations and operating risks. All subsequent written and oral forward-looking
statements attributable to the Company, the Issuers or persons acting on their
behalf are expressly qualified in their entirety by such factors.
THE COMPANY
Newfield is an independent oil and gas company engaged in the exploration,
development and acquisition of oil and natural gas properties located primarily
in the Gulf of Mexico. The Company discovered and acquired its first oil and gas
reserves in 1990 and has grown rapidly since that time. At December 31, 1997 the
Company had proved reserves of 435.3 Bcfe. At such date, approximately 78% of
the Company's proved reserves were natural gas and approximately 80% were proved
developed.
Newfield's strategy is to continue to expand its reserve base and increase
its cash flow through exploration and the acquisition and exploitation of proved
properties. The Company emphasizes the following elements in implementing this
strategy:
- Reserve growth through exploratory drilling of a balanced portfolio
- Balance between exploration and acquisition and exploitation of proved
properties
- Geographic focus
- Control of operations and costs
- Use of 3-D seismic and other advanced technology
- Equity ownership and other incentives to retain and attract employees
The principal executive offices of the Company are located at 363 N. Sam
Houston Parkway E., Suite 2020, Houston, Texas 77060; telephone: (281) 847-6000.
Additional information concerning the Company and its subsidiaries is
included in the Company reports and other documents incorporated by reference in
this Prospectus. See "Available Information" and "Incorporation of Certain
Documents by Reference."
PS-3
<PAGE> 29
THE ISSUERS
Each of the Issuers is a statutory business trust created under Delaware
law pursuant to (i) a separate trust agreement executed by the Company (as
Depositor), the Delaware Trustee and one of the Administrative Trustees (each as
defined herein) and (ii) the filing of a separate certificate of trust with the
Delaware Secretary of State. In connection with an offering of Securities by an
Issuer, such Issuer's trust agreement will be amended and restated in its
entirety (as so amended and restated, a "Trust Agreement"). The Issuers exist
for the sole purposes of (i) issuing and selling Trust Securities, (ii) using
the proceeds from the sale of Trust Securities to acquire Debentures issued by
the Company, (iii) distributing payments received on such Debentures to holders
of Trust Securities in the form of distributions and (iv) engaging in only those
other activities necessary or incidental thereto. Accordingly, Debentures will
be the sole assets of the Issuers and payments under Debentures will be the sole
revenue of the Issuers. The term of the Issuers will be set forth in an
applicable Prospectus Supplement.
All of the Common Securities of each of the Issuers will be owned by the
Company. The Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Preferred Securities, except that upon the occurrence
and continuance of a Declaration Event of Default (as defined herein) resulting
from an Event of Default under the Indenture (as defined herein), the rights of
the Company as holder of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption or otherwise will be
subordinated to the rights of the holders of the Preferred Securities. See
"Description of the Preferred Securities -- Subordination of Common Securities."
Upon consummation of an offering of Preferred Securities, the Company will own
Common Securities in an aggregate liquidation amount equal to approximately 3%
of the total capitalization of the applicable Issuer.
The business and affairs of each of the Issuers will be conducted by its
trustees, which will be appointed by the Company as holder of the Common
Securities. Pursuant to the applicable Trust Agreement, the number of trustees
of each of the Issuers initially will be five. Three of the trustees (the
"Administrative Trustees") will be persons who are employees or officers of, or
affiliated with, the Company. A fourth trustee will be a financial institution
unaffiliated with the Company that serves as property trustee (the "Property
Trustee") under such Trust Agreement. See "Description of the Preferred
Securities." The fifth trustee will be a financial institution or an affiliate
thereof that maintains a principal place of business or residence in the State
of Delaware (the "Delaware Trustee".) The Administrative Trustees, the Property
Trustee and the Delaware Trustee are referred to herein as the "Issuer
Trustees."
The Property Trustee with respect to an Issuer will hold the title to any
Debentures held by such Issuer for the benefit of holders of such Issuer's Trust
Securities and will have the power to exercise all of the rights, powers and
privileges as the holder of such Debentures. In addition, the Property Trustee
of an Issuer will maintain exclusive control of a segregated non-interest
bearing bank account (the "Property Account") to hold all payments made in
respect of any Debentures held by such Issuer for the benefit of the holders of
such Issuer's Trust Securities. The Property Trustee will make payments of
distributions and payments on liquidation, redemption and otherwise to the
holders of Trust Securities out of funds from the Property Account. The trustee
under the Company's Guarantee with respect to such Issuer (the "Guarantee
Trustee")will hold such Guarantee for the benefit of the holders of the
associated Preferred Securities. The Company, as the holder of all the Common
Securities of each of the Issuers, will have the right to appoint, remove or
replace any Issuer Trustee and to increase or decrease the number of Issuer
Trustees, provided that the number of Issuer Trustees shall be at least three, a
majority of which will be Administrative Trustees. The duties and obligations of
the Issuer Trustees will be governed by the applicable Trust Agreement. The
rights of the holders of Preferred Securities, including economic rights, right
to information and voting rights, will be as set forth in the applicable Trust
Agreement and the Delaware Business Trust Act, as amended (the "Trust Act").
The Company will pay, directly or indirectly, all ongoing costs and
expenses of each of the Issuers. See "Description of the Debentures -- Expenses
of Issuer." The principal corporate offices of each of the Issuers are located
at 363 N. Sam Houston Parkway E., Suite 2020, Houston, Texas 77006, and the
telephone number of each of the Issuers is (281) 847-6000.
PS-4
<PAGE> 30
USE OF PROCEEDS
Except as may otherwise be described in the Prospectus Supplement relating
to an offering of Securities, the net proceeds to the Company from the sale of
Debentures to an Issuer in connection with the investment by such Issuer of all
the proceeds from the sale of Preferred Securities pursuant to this Prospectus
and such Prospectus Supplement ("Offered Securities") will be used for general
corporate purposes. Any specific allocation of the net proceeds of an offering
of Securities to a specific purpose will be determined at the time of such
offering and will be described in the related Prospectus Supplement.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the Company's consolidated ratio of earnings
to fixed charges for the periods as shown.
<TABLE>
<CAPTION>
SIX MONTHS
YEAR ENDED DECEMBER 31, ENDED JUNE 30,
------------------------------------ --------------
1993 1994 1995 1996 1997 1997 1998
----- ----- ----- ----- ---- ------ -----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed
charges......................... 82.3x 31.2x 24.1x 28.3x 9.5x 13.6x 3.3x
</TABLE>
The ratio of earnings to fixed charges was computed by dividing earnings by
fixed charges. For this purpose, earnings are defined as income before income
taxes plus fixed charges excluding capitalized interest. Fixed charges consist
of interest expense and the estimated interest component of rent expense.
PS-5
<PAGE> 31
DESCRIPTION OF THE PREFERRED SECURITIES
Except as may be set forth in a Prospectus Supplement, the terms of any
Preferred Securities issued by the Issuers will be identical. Accordingly, while
the following discussion refers to a single Issuer, it is equally applicable to
Preferred Securities issued by either of the Issuers. This summary of certain
provisions of the Preferred Securities and the Trust Agreement does not purport
to be complete and is subject to, and is qualified in its entirety by reference
to, (i) all the provisions of the Trust Agreement for the applicable Issuer (the
form of which is filed as an exhibit to the Registration Statement and copies of
which will be available for inspection at the corporate trust office of the
Property Trustee in Charlotte, North Carolina) and (ii) the Trust Act. Wherever
particular defined terms of the Trust Agreement are referred to herein, such
defined terms are incorporated herein by reference.
GENERAL
Pursuant to the terms of the Trust Agreement, the Issuer Trustees, on
behalf of the Issuer, will issue the Trust Securities in fully registered form
without interest coupons. The Preferred Securities will represent preferred,
undivided beneficial interests in the assets of the Issuer, and the Common
Securities will represent common, undivided beneficial interests in the assets
of the Issuer. All of the Common Securities will be owned by the Company. The
Preferred Securities will rank pari passu, and payments will be made thereon pro
rata, with the Common Securities except as described under "-- Subordination of
Common Securities." Legal title to the Debentures will be held by the Property
Trustee in trust for the benefit of the holders of the Trust Securities. The
Trust Agreement will not permit the issuance by the Issuer of any securities
other than the Trust Securities or the incurrence of any indebtedness by the
Issuer. The payment of Distributions out of money held by the Issuer, and
payments upon redemption of the Preferred Securities or dissolution of the
Issuer, will be guaranteed by the Company to the extent described under
"Description of the Guarantee." The Guarantee will be held by the Guarantee
Trustee for the benefit of the holders of the Preferred Securities. The
Guarantee will not cover payment of Distributions when the Issuer does not have
sufficient available funds to pay such Distributions. The remedy of a holder of
Preferred Securities in such an event is as described herein in "-- Enforcement
of Certain Rights by Holders of Preferred Securities" and "-- Voting Rights;
Amendment of the Trust Agreement."
DISTRIBUTIONS
Rates, payment dates and other terms relating to Distributions on Offered
Securities will be set forth in the Prospectus Supplement relating to such
Offered Securities. Distributions on each Preferred Security will be payable at
the same rate of interest payable on the Debentures. Distributions will
accumulate from the date of original issuance, or the most recent Distribution
Date (as defined below) and will be payable, unless deferred, quarterly in
arrears, when, as and if available for payment by the Property Trustee, except
as otherwise described below. The amount of Distributions payable for any period
will be computed on the basis of a 360-day year of twelve 30-day months. In the
event that any date on which Distributions are payable on the Preferred
Securities is not a Business Day (as defined below), then payment of the
Distributions payable on such date will be made on the next succeeding day that
is a Business Day and without any additional Distributions or other payment in
respect of any such delay (each date on which Distributions are payable in
accordance with the foregoing, a "Distribution Date"). A "Business Day" shall
mean any day other than a Saturday or a 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 Debenture Trustee is closed for business.
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture (as hereinafter defined) to defer
the payment of interest on the Debentures at any time or from time to time for a
period not exceeding 20 consecutive quarters with respect to each deferral
period (each an "Extension Period"), provided that no Extension Period may
extend beyond the stated maturity of the Debentures. As a consequence of any
such election, quarterly Distributions on the Preferred Securities will be
deferred by the Issuer during any such Extension Period. Distributions to which
holders of the Preferred Securities are entitled will accumulate additional
Distributions thereon at the rate per annum set forth herein, compounded
quarterly from the relevant payment date for such Distributions. The term
"Distributions" as
PS-6
<PAGE> 32
used herein shall include any such additional Distributions. During any such
Extension Period, the Company may not, and may not cause any of its subsidiaries
to, (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock, or (ii) make any payment of principal, interest or premium, if
any, on or repay, repurchase or redeem any debt securities (including guarantees
of indebtedness for money borrowed) of the Company that rank pari passu with or
junior to the Debentures (other than (a) any dividend, redemption, liquidation,
interest, principal or guarantee payment by the Company where the payment is
made by way of securities (including capital stock) that rank pari passu with or
junior to the securities on which such dividend, redemption, interest, principal
or guarantee payment is being made, (b) redemptions or purchases of any Rights
(as defined below) pursuant to any Rights Agreement (as defined below), and the
declaration of a dividend of such Rights or the issuance of preferred stock
under such plans in the future, (c) payments under the Guarantee, (d) purchases
of Common Stock related to the issuance of Common Stock under any of the
Company's benefit plans for its directors, officers or employees, (e) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one series or class of the Company's capital stock for another
series or class of the Company's capital stock, and (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period may exceed 20 consecutive quarters or extend beyond the stated
maturity of the Debentures. Upon the termination of any such Extension Period
and the payment of all amounts then due on any Interest Payment Date, the
Company may elect to begin a new Extension Period. See "Description of the
Debenture -- Option to Extend Interest Payment Period."
Distributions with respect to the Preferred Securities must be paid on the
dates payable to the extent that the Issuer has funds available for the payment
of such Distributions in the Property Account. The funds of the Issuer available
for distribution to holders of the Preferred Securities will be limited to
payments under the Debentures. See "Description of the Debentures." If the
Company does not make interest payments on such Debentures, the Property Trustee
will not have funds available to pay Distributions on the Preferred Securities.
The payment of Distributions (if and to the extent the Issuer has funds on hand
available for the payment of such Distributions and cash sufficient to make such
payments) will be guaranteed by the Company on a limited basis as set forth
herein under "Description of the Guarantee."
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the register of the Issuer on the relevant record
dates, which shall be the fifteenth day (whether or not a Business Day) next
preceding the relevant distribution date. As long as the Preferred Securities
remain in book-entry form, subject to any applicable laws and regulations and
the provisions of the Trust Agreement, each such payment will be made as
described under "-- Certain Book-Entry Procedures for Global Certificates."
CONVERSION RIGHTS
The Preferred Securities will be convertible at any time through the close
of business on the maturity date of the Debentures (or, in the case of Preferred
Securities called for redemption, through the close of business on the
Redemption Date), at the option of the holder thereof, into shares of Common
Stock. The conversion rate and other terms of such conversion rights with
respect to particular Offered Securities will be set forth in the Prospectus
Supplement relating to such Offered Securities. Whenever the Company issues
shares of Common Stock upon conversion of Preferred Securities and the Company
has in effect at such time a stock purchase rights agreement ("Rights
Agreement") under which holders of Common Stock are issued rights ("Rights")
entitling the holders under certain circumstances to purchase an additional
share or shares of Common Stock or other capital stock of the Company, the
Company will issue, together with each such share of Common Stock, an
appropriate number of Rights.
A holder of Preferred Securities wishing to exercise its conversion right
shall surrender such Preferred Securities (if in certificated form), together
with an irrevocable conversion notice, to the Property Trustee, as conversion
agent or to such other agent appointed for such purpose (the "Conversion
Agent"), which shall, on behalf of such holder, exchange the Preferred
Securities for a portion of the Debentures and immediately convert such
Debentures into Common Stock. So long as a book-entry system for the Preferred
Securities is in
PS-7
<PAGE> 33
effect, however, the procedures for converting the Preferred Securities that are
in the form of Global Certificates into shares of Company Common Stock will be
as described under "-- Certain Book-Entry Procedures for Global Certificates."
The Company's delivery, upon conversion, of the fixed number of shares of Common
Stock into which the Debentures are convertible (together with the cash payment,
if any, in lieu of any fractional share) shall be deemed to satisfy the
Company's obligation to pay the principal amount at maturity of the portion of
the Debentures so converted and any unpaid interest accrued on such Debentures
at the time of such conversion.
Accrued Distributions will not be paid on Preferred Securities that are
converted, provided that holders of Preferred Securities at the close of
business on a Distribution payment record date will be entitled to receive the
Distribution payable on such Preferred Securities on the corresponding
Distribution Date notwithstanding the conversion of such Preferred Securities on
or subsequent to such Distribution record date but prior to such Distribution
Date. Except as provided in the immediately preceding sentence, the Issuer will
make no payment or allowance for accumulated and unpaid Distributions, whether
or not in arrears, on converted Preferred Securities. The Company will make no
payment or allowance for dividends on the shares of Common Stock issued upon
such conversion. Each conversion will be deemed to have been effected
immediately prior to the close of business on the day on which proper notice was
received by the Conversion Agent.
Shares of Common Stock issued upon conversion of Preferred Securities will
be validly issued, fully paid and non-assessable. 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.
SPECIAL EVENT EXCHANGE OR REDEMPTION
At any time following the occurrence and the continuation of a Tax Event
(as defined below) or an Investment Company Event (as defined below), the
Property Trustee shall direct the Conversion Agent to exchange all outstanding
Trust Securities for Debentures having a principal amount equal to the aggregate
liquidation preference of the Trust Securities to be exchanged and with accrued
interest in an amount equal to any unpaid Distributions on the Trust Securities,
provided that, in the case of a Tax Event, the Company shall have the right to
(a) direct that less than all, or none, of the Trust Securities be so exchanged
if and for so long as the Company shall have elected to pay any Additional Sums
(as defined below) such that the net amounts received by the holders of Trust
Securities not so exchanged in respect of Distributions and other distributions
are not reduced as a result of such Tax Event, and shall not have revoked any
such election or failed to make such payments or (b) redeem the Trust Securities
in the manner set forth below.
If a Tax Event shall occur or be continuing, the Company shall have the
right, upon not less than 30 nor more than 60 days' notice, to redeem the
Debentures at the principal amount thereof plus accrued and unpaid interest, in
whole or in part, for cash on or after a date to be set forth in a Prospectus
Supplement. Promptly following such redemption, Trust Securities with an
aggregate liquidation preference equal to the aggregate principal amount of the
Debentures so redeemed will be redeemed by the Issuer at the liquidation
preference thereof plus accrued and unpaid Distributions thereon to the
redemption date on a pro rata basis. The Common Securities will be redeemed on a
pro rata basis with the Preferred Securities, except that if a Declaration Event
of Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to the Redemption Price.
A "Special Event" means a Tax Event or an Investment Company Event. A "Tax
Event" means the receipt by the Property Trustee, on behalf of the Issuer, of an
opinion of counsel, rendered by a law firm having a national tax and securities
practice (which opinion 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 the Trust
Agreement and does not pertain to the use of the proceeds of the issuance of the
Debentures, there is
PS-8
<PAGE> 34
more than an insubstantial risk in each case after the date hereof that (i) the
Issuer is, or will be within 90 days of 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 Company on such Debentures is not, or
within 90 days of the date thereof will not be, deductible by the Company, in
whole or in part, for United States Federal income tax purposes; or (iii) the
Issuer is, or will be within 90 days of the date thereof, subject to more than a
de minimis amount of other taxes, duties or other governmental charges.
"Investment Company Event" means the receipt by the Property Trustee, on behalf
of the Issuer, of an opinion of counsel, rendered by a law firm having a
national tax and securities practice (which opinion 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 Issuer is or will be considered an "investment
company" that is required to be registered under the Investment Company Act of
1940, as amended (the "Investment Company Act"), which Change in 1940 Act Law
becomes effective on or after the date of original issuance of the Preferred
Securities.
"Additional Sums" means the additional amounts as may be necessary in order
that the amount of Distributions then due and payable by the Issuer on the
outstanding Trust Securities of the Issuer shall not be reduced as a result of
any additional taxes, duties and other governmental charges to which the Issuer
has become subject as a result of a Tax Event that has occurred and is
continuing.
Holders of Preferred Securities, by receiving and accepting such Preferred
Securities, will be deemed to have agreed to be bound by these exchange
provisions in regard to the exchange of such Preferred Securities for Debentures
on the terms described above.
DISTRIBUTION OF DEBENTURES
At any time, the Company will have the right to dissolve the Issuer and,
after satisfaction of the liabilities of creditors of the Issuer as provided by
applicable law, cause the Debentures to be distributed to the holders of the
Trust Securities in dissolution of the Issuer.
After the liquidation date is fixed for any distribution of Debentures for
Preferred Securities, (i) such Preferred Securities will no longer be deemed to
be outstanding, (ii) DTC (as defined below) or its nominee, as the record holder
of such Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and (iii) any certificates representing such Preferred Securities not held by
DTC or its nominee will be deemed to represent the Debentures having a principal
amount equal to the liquidation amount of such Preferred Securities, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Preferred Securities until such certificates are presented
to the Property Trustee for transfer or reissuance.
OPTIONAL REDEMPTION
The Prospectus Supplement relating to Offered Securities will describe
whether such Offered Securities will be subject to optional redemption, in whole
or in part, by the Issuer and the terms of any such redemption.
MANDATORY REDEMPTION
Upon repayment at maturity or as a result of the acceleration of the
Debentures upon the occurrence of a Debenture Event of Default described under
"Description of the Debentures -- Debenture Events of Default," the Debentures
shall be subject to mandatory redemption, in whole but not in part, by the
Company, and the proceeds from such repayment will be applied to redeem Trust
Securities having an aggregate liquidation preference equal to the aggregate
principal amount of Debentures so repaid or redeemed at a redemption price equal
to the respective liquidation preference of the Trust Securities or, in the case
of a redemption of the Debentures, at the redemption price paid with respect to
the Debentures, as described below, together with accrued and unpaid
distributions on the Trust Securities to the date of redemption. Upon
acceleration of the Debentures, the Trust Securities will be redeemed only when
repayment of the Debentures
PS-9
<PAGE> 35
has actually been received by the Issuer. In addition, as described above under
"-- Special Event Exchange or Redemption," upon the occurrence of a Special
Event, Trust Securities will be exchanged for Debentures unless, in the case of
a Tax Event that has occurred and is continuing, the Company shall have elected
to (a) pay any Additional Sums such that the net amounts of Distributions
received by the holders of any Preferred Securities not so exchanged are not
reduced as a result of such Tax Event and shall not have revoked any such
election or failed to make such payments or (b) redeem the Preferred Securities
as further set forth in "-- Special Event Exchange or Redemption."
REDEMPTION PROCEDURES
Trust Securities redeemed on the date fixed for redemption shall be
redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the Debentures. Redemptions of the Trust
Securities shall be made and the redemption price shall be payable on the
redemption date only to the extent that the Issuer has funds on hand available
for the payment of such redemption price. See also "-- Subordination of Common
Securities."
Notice of any redemption (optional or mandatory) of Preferred Securities
(which notice will be irrevocable) will be given by the Property Trustee to each
record holder of Preferred Securities that are being redeemed not fewer than 30
nor more than 60 days prior to the redemption date. If the Property Trustee
gives a notice of redemption in respect of the Preferred Securities, then, by
12:00 noon, New York City time, on the redemption date, to the extent funds are
available, the Property Trustee will deposit irrevocably with DTC or the
Conversion Agent, as the case may be, funds sufficient to pay the applicable
redemption price and will give DTC or the Conversion Agent, as the case may be,
irrevocable instructions and authority to pay the redemption price to the
holders of such Preferred Securities. See "-- Certain Book-Entry Procedures for
Global Certificates." If such Preferred Securities are no longer in book-entry
form, the Property Trustee, to the extent funds are available, will irrevocably
deposit with the Paying Agent funds sufficient to pay the applicable redemption
price and will give the Paying Agent irrevocable instructions and authority to
pay the redemption price to the holders thereof upon surrender of their
certificates evidencing such Preferred Securities. 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 of the relevant record dates for the related distribution
dates. Subject to the preceding sentence, if notice of redemption shall have
been given and funds deposited as required, then upon the date of such deposit,
all rights of the holders of such Trust Securities so called for redemption will
cease, except (i) the right of the holders of such Trust Securities to receive
the redemption price, but without interest on such redemption price, and (ii)
the right to convert such Preferred Securities into Common Stock in the manner
described herein through the close of business on the Redemption Date, and such
Trust Securities will cease to be outstanding. In the event that any date fixed
for redemption of Trust Securities is not a Business Day, then payment of the
redemption price 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), except that, if such Business Day falls in the next calendar year, such
payment will be made on the immediately preceding Business Day. In the event
that payment of the redemption price in respect of Preferred Securities called
for redemption is improperly withheld or refused and not paid either by the
Issuer or by the Company pursuant to the Guarantee as described under
"Description of the Guarantee," Distributions on such Preferred Securities will
continue to accrue at the then applicable rate, from the redemption date
originally established by the Issuer to the date such redemption price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the redemption price.
Subject to applicable law (including, without limitation, United States
federal securities law), the Company or its subsidiaries may at any time and
from time to time purchase outstanding Preferred Securities by tender, in the
open market or by private agreement.
Payment of the redemption price on the Preferred Securities and any
distribution or exchange of Debentures to holders of Preferred Securities shall
be made to the applicable record holders thereof as they appear on the register
for such Preferred Securities on the relevant record date, which shall be the
fifteenth day (whether or not a Business Day) prior to the redemption date or
liquidation date, as applicable.
PS-10
<PAGE> 36
If less than all of the Trust Securities issued by the Issuer are to be
redeemed on a redemption date, then the aggregate liquidation preference of such
Trust Securities to be redeemed shall be allocated pro rata among the Trust
Securities. 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 method as the Property Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions of the
liquidation preference of the Preferred Securities. The Property Trustee shall
promptly notify the Conversion Agent in writing of the Preferred Securities
selected for redemption and, in the case of any Preferred Securities selected
for partial redemption, the liquidation preference thereof to be redeemed; it
being understood that, in the case of Preferred Securities held by DTC (or any
successor) or its nominee, the distribution of the proceeds of such redemption
will be made in accordance with the procedures of DTC or its nominee. For all
purposes of the Trust Agreement, 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 aggregate liquidation preference of Preferred Securities
which has been or is to be redeemed.
Notice of any redemption of Debentures will be mailed at least 30 days but
not more than 60 days before the redemption date to each holder of Debentures to
be redeemed at its registered address. Unless the Company defaults in payment of
the redemption price, on and after the redemption date interest shall cease to
accrue on such Debentures or portions thereof called for redemption.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the redemption price of, the Trust
Securities, as applicable, shall be made pro rata based on the liquidation
preference of such Trust Securities; provided, however, that if on any
distribution date or redemption date a Declaration Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or redemption
price of, any of the Common Securities, and no other payment on account of the
redemption, liquidation or other acquisition of such Common Securities, shall be
made unless payment in full in cash of all accumulated and unpaid Distributions
on all of the 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 of the outstanding
Preferred Securities then called for redemption, shall have been made or
provided for, and all funds available to the Property Trustee shall first be
applied to the payment in full in cash of all Distributions on, or the
redemption price of, the Preferred Securities then due and payable.
In the case of any Declaration Event of Default, the Company as holder of
the Common Securities will be deemed to have waived any right to act with
respect to any such Declaration Event of Default until all such Declaration
Events of Default with respect to the Preferred Securities have been cured,
waived or otherwise eliminated. Until all such Declaration Events of Default
with respect to the Preferred Securities have been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the holders of
the Preferred Securities and not on behalf of the Company as holder of the
Common Securities, and only the holders of the Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
In the event of any voluntary or involuntary dissolution of the Issuer
(each, a "Liquidation"), each holder of the Trust Securities at that time will
be entitled to receive, after satisfaction of liabilities to creditors, an
aggregate principal amount of Debentures equal to the aggregate liquidation
preference of Trust Securities held by such holder. If the Property Trustee
determines that the distribution of the Debentures is not practicable, holders
of the Trust Securities will be entitled to receive out of the assets of the
Issuer, after satisfaction of the liabilities to creditors, distributions in an
amount equal to the aggregate of the stated liquidation preference per Preferred
Security plus accrued and unpaid Distributions thereon to the date of payment
(the "Liquidation Distribution"). See "-- Distribution of Debentures."
If such Liquidation Distribution can be paid only in part because the
Issuer has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then the amounts payable directly by the Issuer
PS-11
<PAGE> 37
on the Preferred Securities shall be paid on a pro rata basis. The holder of the
Common Securities will be entitled to receive Liquidation Distributions upon any
such liquidation pro rata with the holders of the 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.
Pursuant to the Trust Agreement, the Issuer shall automatically dissolve
upon expiration of its term and shall dissolve on the first to occur of: (i)
certain events of bankruptcy, dissolution or liquidation of the Company; (ii)
the distribution of Debentures to the holders of the Trust Securities, if the
Company, as Depositor, has given written direction to the Property Trustee to
dissolve the Issuer (which direction is optional and wholly within the
discretion of the Company, as Depositor); (iii) the redemption, conversion, or
exchange of all of the Trust Securities; (iv) the entry by a court of competent
jurisdiction of an order for the dissolution of the Issuer; and (v) the
occurrence of a Special Event, except in the case of a Tax Event that has
occurred and is continuing following which the Company has elected (i) to pay
any Additional Sums 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 Company has not revoked any such election or failed to make such
payment or (ii) to redeem all or some of the Preferred Securities as further set
forth in "-- Special Event Exchange or Redemption."
DECLARATION EVENTS OF DEFAULT; NOTICE
An event of default under the Indenture (a "Debenture Event of Default")
constitutes an event of default under the Trust Agreement with respect to the
Trust Securities (a "Declaration 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.
Within ten days after the occurrence of any Declaration Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Declaration Event of Default to the holders of the Preferred
Securities, the Administrative Trustees and the Company, as Depositor, unless
such Declaration Event of Default shall have been cured or waived. Except with
respect to defaults in the payment of principal of (or premium, if any) or
interest on any of the Debentures, the Property Trustee may withhold such notice
if the Property Trustee in good faith determines that the withholding of such
notice is in the interests of the holders of the Preferred Securities. The
Company, as Depositor, and the Administrative Trustees, on behalf of the Issuer,
are required to file annually with the Property Trustee a certificate as to
whether or not they are in compliance with all the conditions and covenants
applicable to them under the Trust Agreement.
The holders of a majority in liquidation preference of Preferred Securities
may, by vote, on behalf of the holders of all Preferred Securities, waive any
past Declaration Event of Default in respect of the Preferred Securities and its
consequences, provided that if (a) the underlying Debenture Event of Default is
not waivable under the Indenture, the Declaration Event of Default will also not
be waivable or (b) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures ("Super Majority") to be
waived under the Indenture, the Declaration Event of Default may only be waived
by the vote of the holders of the same proportion in liquidation preference of
the Preferred Securities that the relevant Super Majority represents of the
aggregate principal amount of the Debentures outstanding.
If a Declaration Event of Default has occurred and is continuing, the
Preferred Securities shall have a preference over the Common Securities upon
dissolution of the Issuer as described above. See "-- Liquidation Distribution
upon Dissolution." The existence of a Declaration Event of Default does not
entitle the holders of Preferred Securities to accelerate the maturity thereof.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Declaration Event of Default has occurred and is continuing, then the
holders of Preferred Securities will rely on the enforcement by the Property
Trustee of its rights as a holder of the Debentures against the Company. In
addition, the holders of a majority in aggregate liquidation preference of the
Preferred Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available
PS-12
<PAGE> 38
to the Property Trustee or to direct the exercise of any trust or power
conferred upon the Property Trustee under the Trust Agreement, including the
right to direct the Property Trustee to exercise the remedies available to it as
a holder of the Debentures. If the Property Trustee fails to enforce its rights
as the 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 Company. Notwithstanding the
foregoing, if a Declaration Event of Default has occurred and is continuing and
such event is attributable to the failure of the Company 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 may directly institute a Direct Action against the Company
for enforcement of payment to such holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation
preference of the Preferred Securities of such holder on or after the respective
due date specified in the Debentures. In connection with such Direct Action, the
Company will be subrogated to the rights of such holder of Preferred Securities
under the Trust Agreement to the extent of any payment made by the Company to
such holder of Preferred Securities in such Direct Action. The holders of
Preferred Securities will not be able to exercise directly against the Company
any other remedy available to the Property Trustee unless the Property Trustee
first fails to do so.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any entity 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 entity resulting from any merger,
conversion or consolidation to which such Issuer Trustee shall be a party, or
any entity succeeding to all or substantially all the corporate trust business
of such Issuer Trustee, shall be the successor of such Issuer Trustee under the
Trust Agreement, provided such entity shall be otherwise qualified and eligible.
MERGERS, CONSOLIDATIONS, CONVERSIONS, AMALGAMATION OR REPLACEMENTS OF THE ISSUER
The Issuer may not merge with or into, consolidate, convert into,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other Person (as
defined below), except as described below or as described in "-- Liquidation
Distribution upon Dissolution." The Issuer may, at the request of the Company,
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, merge with or into, consolidate, convert into, amalgamate, 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 Issuer 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 Company 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, conversion,
amalgamation, 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, conversion, amalgamation, 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 holders'
interest in the new entity), (vi) such successor entity has a purpose
substantially identical to that of the Issuer, (vii) prior to such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease, the Company has received an opinion from independent counsel to the
Issuer experienced in such matters to the effect that (a) such merger,
consolidation, conversion, amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights, preferences and privileges of the
holders of the Preferred Securities (including
PS-13
<PAGE> 39
any Successor Securities) in any material respect (other than with respect to
any dilution of the holders' interest in the new entity) and (b) following such
merger, consolidation, conversion, amalgamation, replacement, conveyance,
transfer or lease, neither the Issuer nor such successor entity will be required
to register as an investment company under the Investment Company Act, and (c)
following such merger, consolidation, conversion, amalgamation, replacement,
conveyance, transfer or lease, the Issuer or such successor entity will be
treated as a grantor trust for United States Federal income tax purposes, and
(viii) the Company 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 Issuer shall not, except
with the consent of holders of 100% in aggregate liquidation preference of the
Preferred Securities, consolidate, convert into, amalgamate, 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, convert into, amalgamate, merge with or into, or replace it if such
consolidation, conversion, amalgamation, merger, replacement, conveyance,
transfer or lease would cause the Issuer or the successor entity to be
classified as other than a grantor trust for United States Federal income tax
purposes.
VOTING RIGHTS; AMENDMENT OF THE TRUST AGREEMENT
Except as provided below and under "Description of the
Guarantee -- Amendments and Assignment" and as otherwise required by law and the
Trust Agreement, the holders of the Preferred Securities have no voting rights.
The Trust Agreement may be amended from time to time by the Company and the
Issuer Trustees, without the consent of the holders of the Preferred Securities
(i) to cure any ambiguity, correct or supplement any provisions in the Trust
Agreement that may be inconsistent with any other provision, or to make any
other provisions with respect to matters or questions arising under the Trust
Agreement that shall not be inconsistent with the other provisions of the Trust
Agreement, (ii) to modify, eliminate or add to any provision of the Trust
Agreement to such extent as shall be necessary to ensure that the Issuer 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 Issuer
will not be required to register as an "investment company" under the Investment
Company Act or be classified as other than a grantor trust for United States
federal income tax purposes or (iii) to qualify or maintain the qualification of
the Trust Agreement 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 holder of Trust Securities, and any such amendments
of the Trust Agreement shall become effective when notice thereof is given to
the holders of Trust Securities. Except as set forth below, the Trust Agreement
may be amended by the Issuer Trustees and the Company with (i) the consent of
holders representing not less than a majority (based upon liquidation
preference) of the outstanding Trust Securities, acting as a single class, and
(ii) receipt by the Issuer Trustees of an opinion of counsel to the effect that
such amendment or the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Issuer's status as a grantor
trust for United States federal income tax purposes or the Issuer's exemption
from the status of an "investment company" under the Investment Company Act;
provided, however, if any amendment or proposal that would affect the powers,
preferences or special rights of the Trust Securities would adversely affect the
Preferred Securities or the Common Securities, then only the affected class will
be entitled to vote on such amendment or proposal and such amendment or proposal
will not be effective except with the vote of a majority in liquidation
preference of such class of Trust Securities. In addition to and notwithstanding
the foregoing, without the consent of each holder of Trust Securities, the Trust
Agreement 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 holder of Trust Securities to
institute suit for the enforcement of any such payment on or after such date.
If any proposed amendment of the Trust Agreement provides for, or the
Issuer Trustees otherwise propose to effect, the dissolution of the Issuer,
other than pursuant to the terms of the Trust Agreement, then the holders of the
then outstanding Preferred Securities, as a class, will be entitled to vote on
such amendment
PS-14
<PAGE> 40
or proposal and such amendment or proposal shall not be effective except with
the approval of the holders of the majority in aggregate liquidation preference
of the Preferred Securities.
During the period commencing on the date of occurrence of a Declaration
Event of Default and ending upon the cure of such Declaration Event of Default,
and in other limited circumstances, the holders of a majority in aggregate
liquidation preference of Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee or to direct the exercise of any trust or power conferred
upon the Property Trustee under the Trust Agreement, including the right to
direct the Property Trustee to exercise the remedies available to it as the
holder of the Debentures, but excluding the right to direct the Property Trustee
to consent to an amendment, modification or termination of the Indenture. So
long as any Debentures are held by the Property Trustee, the Issuer Trustees
shall not (i) direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee or executing any trust or power
conferred on the Debenture Trustee with respect to such Debentures, (ii) waive
any past default that is waivable under Section 5.13 of the Indenture, (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable, or (iv) consent to any amendment,
modification or termination of the Indenture or the Debentures where such
consent shall be required, without in each case obtaining the prior approval of
the holders of a majority in aggregate liquidation preference of all outstanding
Preferred Securities (except in the case of clause (iv), which consent, in the
event that no Declaration Event of Default shall occur and be continuing, shall
be of the holders of Trust Securities voting together as a single class);
provided, however, that where a consent under the Indenture would require the
consent of each holder of Debentures affected thereby, no such consent shall be
given by the Property Trustee without the prior written consent of each holder
of the Preferred Securities. The Issuer Trustees shall not revoke any action
previously authorized or approved by a vote of the holders of the Preferred
Securities except by subsequent vote of the holders of the Preferred Securities.
In addition to obtaining the foregoing approvals of the holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Issuer Trustees
shall, at the expense of the Company, obtain an opinion of counsel to the effect
that the Trust will not be taxed as a corporation or partnership for United
States federal income tax purposes on account of such action. The Property
Trustee shall notify each holder of record of the Preferred Securities of any
notice of default with respect to the Debentures.
A waiver of a Debenture Event of Default will constitute a waiver of the
corresponding Declaration Event of Default.
Any required approval or direction of holders of Preferred Securities may
be given at a separate meeting of holders of Preferred Securities convened for
such purpose, at a meeting of all of the holders of the Trust Securities or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote to be
given to each holder of record of Preferred Securities in the manner set forth
in the Trust Agreement.
No vote or consent of the holders of Preferred Securities is required for
the Issuer to redeem and cancel the Preferred Securities in accordance with the
Trust Agreement.
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 Company, the Issuer Trustees or
any affiliate of any Issuer Trustee shall, for purposes of such vote or consent,
be treated as if such Preferred Securities were not outstanding.
The procedures by which holders of Preferred Securities may exercise their
voting rights are described below. See "-- Certain Book-Entry Procedures for
Global Certificates."
Holders of the Preferred Securities have no rights to appoint or remove the
Issuer Trustees, who may be appointed, removed or replaced solely by the
Company, as the direct or indirect holder of all the Common Securities.
PS-15
<PAGE> 41
PAYMENT AND PAYING AGENCY
Payments in respect of the Preferred Securities shall be made to The
Depository Trust Company ("DTC"), which shall credit the relevant accounts at
DTC on the applicable distribution dates or, if the Preferred Securities are not
held by DTC, such payments shall be made by check mailed to the address of the
holder entitled thereto as such address shall appear on the Securities Register.
The paying agent (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 Company. The Paying Agent is permitted to resign
as Paying Agent upon 30 days' written notice to the Property Trustee and the
Company. In the event that the Property Trustee shall no longer be the Paying
Agent, the Administrative Trustees shall appoint a successor (which shall be a
bank or trust company acceptable to the Administrative Trustees and the Company)
to act as Paying Agent.
CERTAIN BOOK-ENTRY PROCEDURES FOR GLOBAL CERTIFICATES
The description of book-entry procedures in this Prospectus includes
summaries of certain rules and operating procedures of DTC that affect transfers
of interests in the global certificate or certificates issued in connection with
sales of Preferred Securities made pursuant to this Prospectus. The Preferred
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (as nominee for DTC). A fully registered global Preferred
Securities certificate (the "Global Certificates") will be issued, representing,
in the aggregate, Preferred Securities sold pursuant to this Prospectus, and
will be deposited with DTC.
The descriptions of the operations and procedures of DTC that follow are
provided solely as a matter of convenience. These operations and procedures are
solely within the control of the DTC settlement system and are subject to change
from time to time. The Issuer and the Company take no responsibility for these
operations and procedures and urge investors to contact the system or their
participants directly to discuss these matters.
DTC has advised the Issuer and the Company as follows: DTC 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 Uniform Commercial Code and a "Clearing Agency" registered
pursuant to the provisions of Section 17A of the Exchange Act. DTC was created
to hold securities for its participants ("participants") and facilitate the
clearance and settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical transfer and delivery of certificates.
Participants include securities brokers and dealers, banks, trust companies and
clearing corporations and may include certain other organizations. Indirect
access to the DTC system is available to other entities such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial
relationship with a participant, either directly or indirectly ("indirect
participants").
DTC has advised the Issuer and the Company that its current practice is to
credit, on its internal system, the respective liquidation preference or number
of securities of the individual beneficial interests represented by the Global
Certificate to the accounts with DTC of the participants through which such
interests are to be held. Ownership of beneficial interests in the Global
Certificate will be shown on, and the transfer of that ownership will be
effected only through, records maintained by DTC or its nominees (with respect
to interests of participants) and the records of participants and indirect
participants (with respect to interests of persons other than participants).
As long as DTC, or its nominee, is the registered holder of the Global
Certificate, DTC or such nominee, as the case may be, will be considered the
sole owner and holder of the Preferred Securities represented by such Global
Certificate for all purposes under the Trust Agreement and the Preferred
Securities.
Except in the limited circumstances described below under " -- Exchanges of
Book-Entry Certificates for Certificated Preferred Securities", owners of
beneficial interests in a Global Certificate will not be entitled to have any
portions of such Global Certificate registered in their names, will not receive
or be entitled to receive physical delivery of Preferred Securities in
definitive form and will not be considered the owners or
PS-16
<PAGE> 42
holders of the Global Certificate (or any Preferred Securities represented
thereby) under the Trust Agreement or the Preferred Securities.
The laws of some states require that certain persons take physical delivery
in definitive form of securities that they own. Consequently, the ability to
transfer beneficial interests in a Global Certificate to such persons may be
limited to that extent. Because DTC can act only on behalf of its participants,
which in turn act on behalf of indirect participants and certain banks, the
ability of a person having beneficial interests in a Global Certificate to
pledge such interest to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests.
Payments of Distributions on the Global Certificate will be made to DTC or
its nominee as the registered owner thereof. Neither the Issuer, the Company,
the Property Trustee nor any of their respective agents has any responsibility
or liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in the Global Certificate or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Issuer and the Company expect that DTC or its nominee, upon receipt of
any payment of Distributions in respect of the Global Certificate representing
the Preferred Securities held by it or its nominee, will immediately credit
participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the liquidation preference or number of
securities represented by the Global Certificate for the Preferred Securities as
shown on the records of DTC or its nominee. The Issuer and the Company also
expect that payments by participants to owners of beneficial interests in the
Global Certificate held through such participants will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of customers registered in "street name." Such payments will be
the responsibility of such participants.
Interests in the Global Certificate will trade in DTC's Same-Day Funds
Settlement System and secondary market trading activity in such interests will
therefore settle in immediately available funds, subject in all cases to the
rules and procedures of DTC and its participants. Transfers between participants
in DTC will be effected in accordance with DTC's procedures, and will be settled
in same-day funds.
DTC has advised the Issuer and the Company that it will take any action
permitted to be taken by a holder of certificates for Preferred Securities
(including the presentation of Preferred Securities for exchange as described
below and the conversion of Preferred Securities) only at the direction of one
or more participants to whose account with DTC interests in the Global
Certificate are credited and only in respect of such portion of the aggregate
liquidation preference of the Preferred Securities as to which such participant
or participants has or have given such direction. However, if there is a
Declaration Event of Default, DTC reserves the right to exchange the Global
Certificate for legended Preferred Securities in certificated form, and to
distribute such Preferred Securities to its participants.
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of beneficial ownership interests in the Global Certificate, they are
under no obligation to perform or continue to perform such procedures, and such
procedures may be discontinued at any time. None of the Issuer, the Company, the
Underwriters, the Property Trustee nor any of their respective agents has any
responsibility for the performance by DTC or their participants or indirect
participants of their respective obligations under the rules and procedures
governing their operations, including maintaining, supervising or reviewing the
records relating to, or payments made on account of, beneficial ownership
interests in the Global Certificate.
Redemption notices shall be sent to Cede & Co. as the registered holder of
the Preferred Securities. If less than all of the Preferred Securities are being
redeemed, DTC will determine the amount of interest of each Participant to be
redeemed in accordance with its procedures.
Although voting with respect to the Preferred Securities is limited to the
holders of record of the Preferred Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to Preferred Securities. Under its usual procedures, DTC would mail an
omnibus proxy (the "Omnibus Proxy") to the Property Trustee as soon as possible
after the record date. The Omnibus
PS-17
<PAGE> 43
Proxy assigns Cede & Co.'s consenting or voting rights to those direct
participants to whose accounts such Preferred Securities are credited on the
record date (identified in a listing attached to the Omnibus Proxy).
Conveyance of notices and other communications by DTC to participants, by
participants to indirect participants, and by participants and indirect
participants to beneficial owners of the Preferred Securities and the voting
rights of participants, indirect participants and beneficial owners of Preferred
Securities will be governed by arrangements among them, subject to any statutory
or regulatory requirements as may be in effect from time to time.
DTC may discontinue providing its services as securities depositary with
respect to the Preferred Securities at any time by giving reasonable notice to
the Property Trustee and the Company. In the event that a successor securities
depositary is not obtained, definitive Preferred Securities certificates
representing such Preferred Securities will be required to be printed and
delivered. The Company, at its option, may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary). After a
Debenture Event of Default, the holders of a majority in liquidation preference
of Preferred Securities may determine to discontinue the system of book-entry
transfers through DTC. In any such event, definitive certificates for the
Preferred Securities will be printed and delivered.
EXCHANGES OF BOOK-ENTRY CERTIFICATES FOR CERTIFICATED PREFERRED SECURITIES
A beneficial interest in a Global Certificate may not be exchanged for
certificated Preferred Securities unless (i) DTC (x) notifies the Issuer and the
Company that it is unwilling or unable to continue as depositary for the Global
Certificate or (y) has ceased to be a clearing agency registered under the
Exchange Act and in either case the Issuer and the Company thereupon fail to
appoint a successor depositary, (ii) the Issuer and the Company, at their
option, notify the Property Trustee in writing that they elect to cause the
issuance of the Preferred Securities in certificated form or (iii) there shall
have occurred and be continuing a Declaration Event of Default or any event
which after notice or lapse of time or both would be a Declaration 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 DTC (in accordance with its customary procedures). Any such exchange will be
effected through the DWAC system and an appropriate adjustment will be made in
the records of the security registrar to reflect a decrease in the liquidation
preference or number of securities of the Global Certificate.
TRANSFER AGENT, REGISTRAR AND PAYING, CONVERSION AND EXCHANGE AGENT
The Property Trustee will act as transfer agent, registrar and paying,
conversion and exchange agent for the Preferred Securities.
Registration of transfers or exchanges of Preferred Securities will be
effected without charge by or on behalf of the Issuer, but upon payment of any
tax or other governmental charges that may be imposed in connection with any
transfer or exchange. The Issuer will not be required to register or cause to be
registered the transfer of the Preferred Securities after such Preferred
Securities have been called for redemption.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee, other than during the occurrence and continuance of a
Declaration Event of Default, undertakes to perform only such duties as are
specifically set forth in the Trust Agreement and, after such Declaration Event
of Default, must 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 Property Trustee is under no obligation to exercise any of the
powers vested in it by the Trust Agreement at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby. If no
Declaration Event of Default has occurred and is continuing and the Property
Trustee is required to decide between alternative causes of action, construe
ambiguous provisions in the Trust Agreement or is unsure of the application of
any provision of the Trust Agreement, and the matter is not one on which holders
of Preferred Securities are entitled under the Trust Agreement to vote, then the
Property Trustee shall take such action as is directed by the Company and, if
not so directed, shall take such action as it
PS-18
<PAGE> 44
deems advisable and in the best interests of the holders of the Trust Securities
and will have no liability except for its own bad faith, negligence or willful
misconduct.
MISCELLANEOUS
The Administrative Trustees are authorized and directed to conduct the
affairs of and to operate the Issuer in such a way that the Issuer will not be
deemed to be an "investment company" required to be registered under the
Investment Company Act or classified for United States federal income tax
purposes as a grantor trust and so that the Debentures will be treated as
indebtedness of the Company for United States Federal income tax purposes. In
this connection, the Company and the Administrative Trustees are authorized to
take any action, not inconsistent with applicable law, the certificate of trust
of the Issuer or the Trust Agreement, that the Company and the Administrative
Trustees determine in their discretion to be necessary or desirable for such
purposes, as long as such action does not materially adversely affect the
interests of the holders of the Preferred Securities, except as otherwise
provided in the first sentence of the second paragraph under "-- Voting Rights;
Amendment of the Trust Agreement."
Holders of the Preferred Securities will have no preemptive or similar
rights.
The Issuer may not borrow money or issue debt or mortgage or pledge any of
its assets.
GOVERNING LAW
The Trust Agreement and the Trust Securities will be governed by, and
construed in accordance with, the laws of the State of Delaware.
DESCRIPTION OF THE DEBENTURES
Set forth below is a description of the specific terms of the Debentures in
which the Issuers will invest the proceeds from the issuance and sale of Trust
Securities. The Debentures will be issued under a Junior Convertible
Subordinated Indenture (the "Indenture") between the Company and First Union
National Bank, as trustee (the "Debenture Trustee"), the form of which is filed
as an exhibit to the Registration Statement and copies of which will be
available for inspection at the corporate trust office of the Debenture Trustee
in Charlotte, North Carolina. There will be a separate Indenture for the
Debentures issued to a particular Trust. This summary of certain terms and
provisions of the Debentures and the Indenture does not purport to be complete
and is subject to, and is qualified in its entirety by reference to, the
Indenture. Whenever particular defined terms of the Indenture are referred to
herein, such defined terms are incorporated herein by reference.
GENERAL
The Debentures will be unsecured and rank junior and subordinate in right
of payment to all Senior Debt of the Company. The Indenture will not limit the
incurrence or issuance of other secured or unsecured debt of the Company,
whether under the Indenture or any existing or other indenture that the Company
may enter into in the future or otherwise. See " -- Subordination."
Concurrently with the issuance of the Preferred Securities, the Issuer will
invest the proceeds thereof and the consideration paid by the Company for the
Common Securities in the Debentures. The Debentures will be in the principal
amount equal to the aggregate stated liquidation preference of the Preferred
Securities plus the Company's concurrent investment in the Common Securities.
The Debentures will not be subject to any sinking fund provision. The
entire principal amount of the Debentures will mature, and become due and
payable, together with any accrued and unpaid interest thereon, as set forth in
a Prospectus Supplement relating to the Debentures.
PS-19
<PAGE> 45
INTEREST
The Debentures will bear interest at an annual rate per annum set forth in
a Prospectus Supplement relating to the Debentures, payable quarterly in arrears
on the dates set forth in such Prospectus Supplement (each, an "Interest Payment
Date"), to the person in whose name each Debenture is registered at the close of
business on the Business Day next preceding such Interest Payment Date, subject
to certain exceptions. It is anticipated that, until the dissolution, if any, of
the Issuer, each Debenture will be held in the name of the Property Trustee in
trust for the benefit of the holders of the Trust Securities. The amount of
interest payable for any period will be computed on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on the Debentures is not a Business Day, then payment of the interest payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay). Accrued
interest that is not paid on the applicable Interest Payment Date will bear
additional interest on the amount thereof (to the extent permitted by law) at
the stated rate per annum, compounded quarterly. The term "interest" as used
herein shall include quarterly interest payments, interest on quarterly interest
payments not paid on the applicable Interest Payment Date and Additional Sums,
as applicable.
GLOBAL SECURITIES
If distributed to holders of the Preferred Securities in connection with
the involuntary or voluntary dissolution of the Issuer, including a dissolution
following the occurrence of a Special Event, the Debentures will be issued in
the same form as the Preferred Securities which such Debentures replace. Any
Global Certificate will be replaced by one or more global certificates (each a
"Global Security") registered in the name of the depositary or its nominee.
Except under the limited circumstances described below, the Debentures
represented by the Global Security will not be exchangeable for, and will not
otherwise be issuable as, Debentures in definitive form. The Global Security
described above may not be transferred except by the depositary to a nominee of
the depositary or by a nominee of the depositary to the depositary or another
nominee of the depositary or to a successor depositary or its nominee.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of such securities in definitive form. Such
laws may impair the ability to transfer beneficial interests in such a Global
Security.
Except as provided below, owners of beneficial interests in such a Global
Security will not be entitled to receive physical delivery of Debentures in
definitive form and will not be considered the holders thereof for any purpose
under the Indenture, and no Global Security representing Debentures shall be
exchangeable, except for another Global Security of like denomination and tenor
to be registered in the name of the depositary or its nominee or to a successor
depositary or its nominee. Accordingly, each beneficial owner of Preferred
Securities must rely on the procedures of DTC or if such person is not a
participant, on the procedures of the participant through which such person owns
its interest to exercise any rights of a holder under the Indenture.
If Debentures are distributed to holders of Preferred Securities in
liquidation of such holders' interests in the Issuer and a Global Security is
issued, DTC will act as securities depositary for the Debentures represented by
such Global Security. For a description of DTC and the specific terms of the
depositary arrangements, see "Description of the Preferred Securities -- Certain
Book-Entry Procedures for Global Certificates." As of the date of this
Prospectus Supplement, the description therein of DTC's book-entry system and
DTC's practices as they relate to purchases, transfers, notices and payments
with respect to the Preferred Securities apply in all material respects to any
debt obligations represented by one or more Global Securities held by DTC. The
Company may appoint a successor to DTC or any successor depositary in the event
DTC or such depositary is unable or unwilling to continue as a depositary for
the Global Securities.
None of the Company, the Debenture Trustee, any Paying Agent or the
securities registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of the Global Security representing such Debentures or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
PS-20
<PAGE> 46
A Global Security shall be exchangeable for Debentures registered in the
names of persons other than DTC or its nominee only if (i) DTC notifies the
Company that it is unwilling or unable to continue as a depositary for such
Global Debenture and no successor depositary shall have been appointed by the
Company within 90 days, (ii) if at any time DTC ceases to be a clearing agency
registered under the Exchange Act at a time when DTC is required to be so
registered to act as such depositary and no successor depositary shall have been
appointed by the Company within 90 days, (iii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iv) there shall have occurred and be continuing an Event of Default with
respect to such Global Security. Any Global Security that is exchangeable
pursuant to the preceding sentence shall be exchangeable for definitive
certificates registered in such names as DTC shall direct. It is expected that
such instructions will be based upon directions received by DTC from its
Participants with respect to ownership of beneficial interests in such Global
Security.
PAYMENT AND PAYING AGENTS
Payments on Debentures represented by a Global Security will be made to
DTC, as the depositary for the Debentures. In the event Debentures are issued in
definitive form, principal of and premium, if any, and any interest on
Debentures will be payable, the transfer of the Debentures will be registrable,
and the Debentures will be exchangeable for Debentures of other denominations of
a like aggregate principal amount at the corporate office of the Debenture
Trustee in the City of New York or at the office of such Paying Agent or Paying
Agents as the Company may designate, except that at the option of the Company
payment of any interest may be made (i) by check mailed to the address of the
Person entitled thereto as such address shall appear in the securities register
or (ii) by wire transfer to an account maintained by the Person entitled thereto
as specified in the securities register, provided that proper transfer
instructions have been received by the Regular Record Date. Payment of any
interest on Debentures will be made to the Person in whose name such Debentures
are registered at the close of business on the Regular Record Date for such
interest, except in the case of Defaulted Interest. The Regular Record Date for
the interest payable on any Interest Payment Date shall be the fifteenth day
(whether or not a Business Day) next preceding such Interest Payment Date. The
Company may at any time designate additional Paying Agents or rescind the
designation of any Paying Agent.
Any monies deposited with the Debenture 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 Debentures and remaining unclaimed for two
years after such principal and premium, if any, or interest has become due and
payable shall, at the request of the Company, be repaid to the Company and the
holder of such Debentures shall thereafter look, as a general unsecured
creditor, only to the Company for payment thereof.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
So long as no Debenture Event of Default has occurred and is continuing,
the Company has the right under the Indenture to defer the payment of interest
on the Debentures at any time or from time to time for a period not exceeding 20
consecutive quarters with respect to each Extension Period, provided that no
Extension Period may extend beyond the stated maturity of the Debentures. At the
end of such Extension Period, the Company must pay all interest then accrued and
unpaid (together with interest thereon at the stated annual rate, compounded
quarterly, to the extent permitted by applicable law). During an Extension
Period, interest will continue to accrue and holders of Debentures (or holders
of Preferred Securities while the Preferred Securities are outstanding) will be
required to recognize interest income for United States Federal income tax
purposes.
During any such Extension Period, the Company may not, and may not cause
any subsidiary to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (a) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made,
PS-21
<PAGE> 47
(b) redemptions or purchases of any Rights pursuant to any Rights Agreement and
the declaration of a dividend of such Rights or the issuance of preferred stock
under such plans in the future, (c) payments under the Guarantee, (d) purchases
of Common Stock related to the issuance of Common Stock under any of the
Company's benefit plans for its directors, officers or employees, (e) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one series or class of the Company's capital stock for another
series or class of the Company's capital stock, and (f) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged). Prior to the termination of any such Extension Period,
the Company may further extend the interest payment period, provided that no
Extension Period may exceed 20 consecutive quarters or extend beyond the stated
maturity of the Debentures. Upon the termination of any such Extension Period
and the payment of all amounts then due on any Interest Payment Date, the
Company may elect to begin a new Extension Period subject to the above
requirements. No interest shall be due and payable during an Extension Period,
except at the end thereof. The Company shall give the Property Trustee, the
Administrative Trustees and the Debenture Trustee notice of its election to
begin any Extension Period at least one Business Day prior to the earlier of (i)
the record date for the date Distributions on the Preferred Securities (or, if
no Preferred Securities are outstanding, for the date interest on the
Debentures) would have been payable except for the election to begin such
Extension Period and (ii) the date the Property Trustee is (or, if no Preferred
Securities are outstanding, the Debenture Trustee is) required to give notice to
the NYSE or other applicable self-regulatory organization or to holders of such
Preferred Securities (or, if no Preferred Securities are outstanding, to the
holders of such Debentures) of such record date. The Debenture Trustee and the
Property Trustee shall give notice of the Company's election to begin an
Extension Period to the holders of the Debentures and the Preferred Securities,
respectively.
MANDATORY REDEMPTION
Upon repayment at maturity or as a result of acceleration upon the
occurrence of a Debenture Event of Default, the Company will redeem the
Debentures, in whole but not in part, at a redemption price equal to 100% of the
principal amount thereof, together with any accrued and unpaid interest thereon.
Any payment pursuant to this provision shall be made prior to 12:00 noon, New
York City time, on the date of such repayment or acceleration or at such other
time on such earlier date as the parties thereto shall agree. The Debentures are
not entitled to the benefit of any sinking fund or, except as set forth above or
as a result of acceleration, any other provision for mandatory prepayment.
OPTIONAL REDEMPTION
The Prospectus Supplement relating to Debentures will describe whether the
Debentures will be subject to optional redemption, in whole or in part, by the
Company and the terms of any such redemption. For so long as the Issuer is the
holder of all the outstanding Debentures, the proceeds of any such redemption
will be used by the Issuer to redeem Trust Securities in accordance with their
terms.
To the extent set forth in the Prospectus Supplement, the Company also will
have the right to redeem the Debentures, at the principal amount thereof plus
accrued and unpaid interest, if a Tax Event shall occur and be continuing.
REDEMPTION PROCEDURES
Notices of any redemption of the Debentures and the procedures for such
redemption shall be as provided with respect to the Preferred Securities under
"Description of the Preferred Securities -- Redemption Procedures." Notice of
any redemption will be mailed at least 30 days but not more than 60 days before
the redemption date to each holder of Debentures to be redeemed at its
registered address. Unless the Company defaults in payment of the redemption
price, on and after the redemption date interest shall cease to accrue on such
Debentures or portions thereof called for redemption.
PS-22
<PAGE> 48
DISTRIBUTION OF DEBENTURES
At any time, the Company has the right to dissolve the Issuer and, after
satisfaction of the liabilities of creditors of the Issuer as provided by
applicable law, cause the Debentures to be distributed to the holders of the
Trust Securities in dissolution of the Issuer. If distributed to holders of
Preferred Securities in liquidation, the Debentures will initially be issued in
the form of one or more global securities and DTC, or any successor depositary
for the Preferred Securities, will act as depositary for the Debentures. It is
anticipated that the depositary arrangements for the Debentures would be
substantially identical to those in effect for the Preferred Securities. There
can be no assurance as to the market price of any Debentures that may be
distributed to the holders of Preferred Securities. For a description of DTC and
the terms of the depositary matters, see "-- Global Securities."
CONVERSION OF THE DEBENTURES
The Debentures will be convertible at the option of the holders of the
Debentures into Common Stock, at any time prior to redemption or maturity, at a
rate equivalent to the conversion rate from time to time in effect with respect
to the Preferred Securities. The Issuer will covenant for so long as the
Preferred Securities are outstanding not to convert Debentures, except pursuant
to a notice of conversion delivered to the Conversion Agent by a holder of
Preferred Securities. Upon surrender of such Preferred Securities to the
Conversion Agent for conversion, the Issuer will distribute the commensurate
principal amount of the Debentures to the Conversion Agent on behalf of the
holder of every Preferred Security so converted, whereupon the Conversion Agent
will convert such Debentures into Common Stock on behalf of such holder. The
Company's delivery to the holders of the Debentures (through the Conversion
Agent) of the fixed number of shares of Common Stock into which the Debentures
are convertible (together with the cash payment, if any, in lieu of fractional
shares) will be deemed to satisfy the Company's obligation to pay the principal
amount of the Debentures, and the accrued and unpaid interest attributable to
the period from the last date to which interest has been paid or duly provided
for.
MODIFICATION OF INDENTURE
From time to time, the Company and the Debenture Trustee may, without the
consent of the holders of Debentures, amend, waive or supplement the Indenture
for specified purposes, including, among other things, curing ambiguities,
defects or inconsistencies (provided that any such action does not materially
adversely affect the interest of the holders of the Debentures, or the holders
of the Preferred Securities so long as they remain outstanding) and qualifying,
or maintaining the qualification of, the Indenture under the Trust Indenture
Act. The Indenture will contain provisions permitting the Company and the
Debenture Trustee, with the consent of the holders of not less than a majority
in principal amount of the outstanding Debentures, to modify the Indenture in a
manner affecting the rights of the holders of the Debentures; provided that no
such modification may, without the consent of the holder of each outstanding
Debenture so affected, (i) change the stated maturity of the Debentures, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon (other than deferrals of the payments of interest as
described under "-- Option to Extend Interest Payment Period") or reduce the
premium payable upon the redemption thereof, or impair any right to institute
suit for the enforcement of any such payment, or adversely affect the
subordination provisions of the Indenture or any right to convert any Debentures
or (ii) reduce the percentage of principal amount of Debentures, the holders of
which are required to consent to any such modification of the Indenture,
provided that, so long as any of the Preferred Securities remain outstanding,
(a) no such
PS-23
<PAGE> 49
modification may be made that adversely affects the holders of such Preferred
Securities in any material respect, and no termination of the Indenture may
occur, and no waiver of any Debenture Event of Default or compliance with any
covenant under the Indenture may be effective, without the prior consent of the
holders of at least a majority in aggregate liquidation preference of the
Preferred Securities then outstanding unless and until the principal of and any
premium on the Debentures and all accrued and unpaid interest thereon has been
paid in full and (b) where a consent under the Indenture would require the
consent of each holder of Debentures, no such consent will be given by the
Property Trustee without the prior consent of each holder of the Preferred
Securities.
DEBENTURE EVENTS OF DEFAULT
The Indenture will provide that any one or more of the following described
events that has occurred and is continuing constitutes a "Debenture Event of
Default" with respect to such Debentures:
(i) failure for 30 days to pay any interest on the Debentures, when
due (subject to the deferral of any due date in the case of an Extension
Period);
(ii) failure to pay any principal or premium, if any, on the
Debentures when due whether at maturity, upon redemption by declaration or
otherwise;
(iii) failure by the Company to deliver shares of Common Stock upon an
appropriate election by holders of Debentures to convert such Debentures;
(iv) failure to observe or perform in any material respect certain
other covenants contained in the Indenture for 90 days after written notice
to the Company from the Debenture Trustee or to the Debenture Trustee and
the Company from the holders of at least 25% in aggregate outstanding
principal amount of such Debentures or from the holders of at least 25% in
aggregate liquidation preference of the Preferred Securities; or
(v) certain events in bankruptcy, insolvency or reorganization of the
Company.
The holders of a majority in aggregate outstanding principal amount of the
Debentures will have the right to 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 consistent with
the Indenture. The Debenture Trustee or the holders of not less than 25% in
aggregate principal amount of the Debentures then outstanding may declare the
principal and accrued interest due and payable immediately upon a Debenture
Event of Default, and, should the Debenture Trustee or the holders of the
Debentures fail to make such declaration, the holders of at least 25% in
aggregate liquidation preference of the Preferred Securities then outstanding
shall have such right. The holders of a majority in aggregate outstanding
principal amount of the Debentures may annul and rescind such declaration if the
default (other than the non-payment of the principal of the Debentures which has
become due solely by such acceleration) has been cured or waived and a sum
sufficient to pay all matured installments of interest and principal due
otherwise than by acceleration has been deposited with the Debenture Trustee
and, should the holders of the Debentures fail to annul and rescind such
declaration, the holders of a majority in aggregate liquidation preference of
the Preferred Securities then outstanding shall have such right.
The holders of a majority in aggregate outstanding principal amount of the
Debentures affected thereby may, on behalf of the holders of all the Debentures,
waive any past default, except a default in the payment of principal or interest
(unless such default has been cured and a sum sufficient to pay all matured
installments of interest and principal due otherwise than by acceleration has
been deposited with the Debenture Trustee) or a default in respect of a covenant
or provision which under the Indenture cannot be modified or amended without the
consent of the holder of each outstanding Debenture, provided, however, that if
the Debentures are held by the Trust, such waiver will not be effective until
the holders of a majority in liquidation preference of Trust Securities have
consented to such waiver, provided, further, that if the consent of the holder
of each outstanding Debenture is required, such waiver will not be effective
until each holder of the Trust Securities has consented to such waiver. Should
the holders of the Debentures fail to annul such declaration and waive
PS-24
<PAGE> 50
such default, the holders of a majority in aggregate liquidation preference of
the Preferred Securities shall have such right. The Company is required to file
annually with the Debenture Trustee a certificate as to whether or not the
Company is in compliance with all the conditions and covenants applicable to it
under the Indenture.
In case a Debenture Event of Default shall occur and be continuing as to
the Debentures, the Property Trustee will have the right to declare the
principal of and the interest on the Debentures and any other amounts payable
under the Indenture to be forthwith due and payable and to enforce its other
rights as a creditor with respect to the Debentures.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If a Debenture Event of Default has occurred and is continuing and such
event is attributable to the failure of the Company to pay interest or principal
on the Debentures on the date such interest or principal is otherwise payable, a
holder of Preferred Securities may institute a Direct Action for payment after
the respective due date specified in the Debentures. The Company may not amend
the Indenture to remove the foregoing right to bring a Direct Action without the
prior written consent of the holders of all of the Preferred Securities.
Notwithstanding any payment made to such holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of or interest on the Debentures held by the Issuer or the
Property Trustee, and the Company shall be subrogated to the rights of the
holder of such Preferred Securities with respect to payments on the Preferred
Securities to the extent of any payments made by the Company to such holder in
any Direct Action.
CONSOLIDATION, MERGER, SALE OF ASSETS AND OTHER TRANSACTIONS
The Indenture provides that the Company shall not consolidate with or merge
into any other Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, and no Person shall consolidate with
or merge into the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless (i) in case the Company
consolidates with or merges into another Person or conveys, transfers or leases
its properties and assets substantially as an entirety to any Person, the
successor Person is organized under the laws of the United States or any state
or the District of Columbia, and such successor Person expressly assumes the
Company's obligations on the Debentures and under the Indenture; (ii)
immediately after giving effect thereto, no Debenture Event of Default, and no
event which, after notice or lapse of time or both, would become a Debenture
Event of Default, shall have happened and be continuing; (iii) such transaction
is permitted under the Trust Agreement and the Guarantee and does not give rise
to any breach or violation of the Trust Agreement or the Guarantee; and (iv)
certain other conditions as prescribed in the Indenture are met.
The general provisions of the Indenture do not afford holders of the
Debentures protection in the event of a highly leveraged or other transaction
involving the Company that may adversely affect holders of the Debentures.
EXPENSES OF ISSUER
Pursuant to the Indenture, the Company will pay all of the costs, expenses
or liabilities of the Issuer, other than obligations of the Issuer to pay to the
holders of any Preferred Securities or Common Securities the amounts due such
holders pursuant to the terms of the Preferred Securities or Common Securities.
SATISFACTION AND DISCHARGE
The Indenture provides that when, among other things, all Debentures not
previously delivered to the Debenture Trustee for cancellation (i) have become
due and payable or (ii) will become due and payable at their stated maturity
within one year or are to be properly called for redemption within one year, and
the Company deposits or causes to be deposited with the Debenture Trustee trust
funds, in trust, for the purpose and in an amount in the currency or currencies
in which the Debentures are payable sufficient to pay and discharge the entire
indebtedness on the Debentures not previously delivered to the Debenture Trustee
for
PS-25
<PAGE> 51
cancellation, for the principal and premium, if any, and interest to the date of
the deposit or to the stated maturity, as the case may be, then the Indenture
will cease to be of further effect (except as to the Company's obligations to
pay all other sums due pursuant to the Indenture and to provide the officers'
certificates and opinions of counsel described therein), and the Company will be
deemed to have satisfied and discharged the Indenture.
SUBORDINATION
In the Indenture, the Company will covenant and agrees that any Debentures
issued thereunder will be subordinate and junior in right of payment to all
Senior Debt (as defined below) of the Company whether now existing or
hereinafter incurred. Upon any payment or distribution of assets of the Company
to creditors upon any liquidation, dissolution, winding-up, reorganization,
assignment for the benefit of creditors, marshaling of assets or any bankruptcy,
insolvency, debt restructuring or similar proceedings in connection with any
insolvency or bankruptcy proceeding of the Company, the holders of Senior Debt
will first be entitled to receive payment in full of principal of and premium,
if any, and interest, if any, on such Senior Debt before the Property Trustee,
on behalf of the holders of the Debentures, will be entitled to receive or
retain any payment in respect of the principal of and premium, if any, or
interest, if any, on the Debentures.
In the event of the acceleration of the maturity of any Debentures, the
holders of all Senior Debt outstanding at the time of such acceleration will
first be entitled to receive payment in full of all amounts due thereon
(including any amounts due upon acceleration) before the holders of Debentures
will be entitled to receive or retain any payment in respect of the principal of
or premium, if any, or interest, if any, on the Debentures.
No payments on account of principal (or premium, if any) or interest, if
any, in respect of the Debentures may be made if there shall have occurred and
be continuing a default in any payment with respect to Senior Debt, or an event
of default with respect to any Senior Debt resulting in the acceleration of the
maturity thereof, or if any judicial proceeding shall be pending with respect to
any such default.
"Debt" means, with respect to any Person, whether recourse is to all or a
portion of the assets of such Person and whether or not contingent, (i) every
obligation of such Person for money borrowed; (ii) every obligation of such
Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another person the payment of which, in either case, such
Person has guaranteed or for which such Person is responsible or liable,
directly or indirectly, as obligor or otherwise.
"Senior Debt" means the principal of (and premium, if any) and interest, if
any (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company, whether incurred on or prior to the date of the Indenture or thereafter
incurred, unless, in the instrument creating or evidencing the same or pursuant
to which the same is outstanding, it is provided that such obligations are not
superior in right of payment to the Debentures, provided, however, that Senior
Debt does not include:
(i) any Debt of the Company which, when incurred and without respect
to any election under Section 1111(b) of the Bankruptcy Code, was without
recourse to the Company;
(ii) any Debt of the Company to any of its subsidiaries;
(iii) Debt to any employee of the Company;
(iv) any liability for taxes;
PS-26
<PAGE> 52
(v) Debt or other monetary obligations to trade creditors created or
assumed by the Company or any of its subsidiaries in the ordinary course of
business in connection with the obtaining of goods, materials or services;
and
(vi) the Debentures.
The Indenture places no limitation on the amount of additional Senior Debt
that may be incurred by the Company.
GOVERNING LAW
The Indenture and the Debentures will be governed by and construed in
accordance with the laws of the State of New York.
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
The Debenture Trustee is under no obligation to exercise any of the powers
vested in it by the Indenture at the request of any holder of Debentures, unless
offered reasonable indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture Trustee is not
required to expend or risk its own funds or otherwise incur personal financial
liability in the performance of its duties if the Debenture Trustee reasonably
believes that repayment or adequate indemnity is not reasonably assured to it.
DESCRIPTION OF THE GUARANTEE
A Guarantee will be executed and delivered by the Company, concurrently
with the issuance by an Issuer of the Preferred Securities, for the benefit of
the holders from time to time of such Preferred Securities. First Union National
Bank will act as the Guarantee Trustee under such Guarantee. This summary of
certain provisions of the Guarantee does not purport to be complete and is
subject to, and qualified in its entirety by reference to, all of the provisions
of the applicable Guarantee (the form of which is filed as an exhibit to the
Registration Statement and copies of which is available at the corporate trust
offices of the Guarantee Trustee in Charlotte, North Carolina). The Guarantee
Trustee will hold the Guarantee for the benefit of the holders of the applicable
Preferred Securities.
GENERAL
Pursuant to and to the extent set forth in the Guarantee, the Company
irrevocably will agree to pay in full on a subordinated basis, the Guarantee
Payments (as defined below) to the holders of the Preferred Securities, as and
when due, regardless of any defense, right of set off or counterclaim that the
Issuer may have or assert other than the defense of payment. The following
payments with respect to the Preferred Securities, to the extent not paid by or
on behalf of the Issuer (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accumulated and unpaid Distributions required to be paid on
the Preferred Securities, to the extent that the Issuer has funds on hand
available therefor at such time, (ii) the redemption price with respect to any
Preferred Securities called for redemption to the extent that the Issuer has
funds on hand available therefor at such time, or (iii) upon a voluntary or
involuntary dissolution of the Issuer (unless the Debentures are distributed to
holders of the Preferred Securities), the lesser of (a) the Liquidation
Distribution, to the extent that the Issuer has funds on hand available therefor
at such time, and (b) the amount of assets of the Issuer remaining available for
distribution to holders of Preferred Securities. The Company's obligation to
make a Guarantee Payment may be satisfied by direct payment of the required
amounts by the Company to the holders of the Preferred Securities or by causing
the Issuer to pay such amounts to such holders.
The Guarantee will be an irrevocable guarantee on a subordinated basis of
the Issuer's obligations under the Preferred Securities, but it will apply only
to the extent that the Issuer has funds sufficient to make such payments, and is
not a guarantee of collection. If the Company does not make interest payments on
the
PS-27
<PAGE> 53
Debentures held by the Issuer, the Issuer will not be able to pay Distributions
on the Preferred Securities and will not have funds legally available therefor.
The Company will, through the Guarantee, the Trust Agreement, the
Debentures and the Indenture, taken together, fully, irrevocably and
unconditionally guarantee all of the Issuer's obligations under the Preferred
Securities. No single document standing alone or operating in conjunction with
fewer than all of the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of providing a full,
irrevocable and unconditional guarantee of the Issuer's obligations under the
Preferred Securities. See "Relationship Among the Preferred Securities, the
Debentures and the Guarantee."
The Company also will agree separately to irrevocably and unconditionally
guarantee the obligations of the Issuer with respect to the Common Securities to
the same extent as the Guarantee, except that upon the occurrence and during the
continuation of a Declaration Event of Default, holders of Preferred Securities
shall have priority over holders of Common Securities with respect to
distributions and payments on liquidation, redemption or otherwise.
STATUS OF THE GUARANTEE
The Guarantee will constitute an unsecured obligation of the Company and
will rank subordinate and junior in right of payment to all other liabilities of
the Company and ranks pari passu with the most senior preferred stock, if any,
now or hereafter issued by the Company and with any guarantee now or hereafter
entered into by the Company in respect of any preferred or preference stock of
any affiliate of the Company.
The Guarantee will constitute a guarantee of payment and not of collection
(i.e., the guaranteed party may institute a legal proceeding directly against
the Company to enforce its rights under the Guarantee without first instituting
a legal proceeding against any other person or entity). The Guarantee will be
held for the benefit of the holders of the Preferred Securities. The Guarantee
will not be discharged except by payment of the Guarantee Payments in full to
the extent not paid by the Issuer or upon distribution of the Debentures to the
holders of the Preferred Securities. The Guarantee will not place a limitation
on the amount of additional indebtedness that may be incurred by the Company or
any of its subsidiaries.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Preferred Securities (in which case no vote will be
required), the Guarantee may not be amended without the prior approval of the
holders of not less than a majority in aggregate liquidation preference of such
outstanding Preferred Securities. The manner of obtaining any such approval will
be as set forth under "Description of the Preferred Securities-Voting Rights;
Amendment of the Trust Agreement". All guarantees and agreements contained in
the Guarantee bind the successors, assigns, receivers, trustees and
representatives of the Company and inure to the benefit of the holders of the
Preferred Securities then outstanding.
CERTAIN COVENANTS OF THE COMPANY
The Company will covenant in the Guarantee that if and so long as (i) the
Issuer is the holder of all the Debentures, (ii) a Tax Event in respect of the
Issuer has occurred and is continuing and (iii) the Company has elected, and has
not revoked such election, to pay Additional Sums in respect of the Trust
Securities, the Company will pay to the Issuer such Additional Sums. The Company
also will covenant that it will not, and it will not cause any of its
subsidiaries to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (a) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the Company
where the payment is made by way of securities (including capital stock) that
rank pari passu with or junior to the securities on which such dividend,
redemption, interest, principal or guarantee payment is being made, (b)
redemptions or purchases of any Rights pursuant to any Rights Agreement and the
declaration of a dividend of such Rights or the issuance of preferred stock
under such
PS-28
<PAGE> 54
plans in the future, (c) payments under the Guarantee, (d) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's benefit
plans for its directors, officers or employees, (e) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one series or class of the Company's capital stock for another series or class
of the Company's capital stock and (f) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged)
if at such time (i) there shall have occurred any event of which the Company has
actual knowledge that (a) with the giving of notice or the lapse of time, or
both, would constitute a Debenture Event of Default and (b) in respect of which
the Company shall not have taken reasonable steps to cure, (ii) the Company
shall be in default with respect to its payment of any obligations under the
Guarantee or (iii) the Company shall have given notice of its selection of an
Extension Period as provided in the Indenture with respect to the Debentures and
shall not have rescinded such notice, or such Extension Period, or any extension
thereof, shall be continuing. The Company also covenanted (i) for so long as
Preferred Securities are outstanding, not to convert Debentures except pursuant
to a notice of conversion delivered to the Conversion Agent by a holder of
Preferred Securities, (ii) to maintain directly or indirectly 100% ownership of
the Common Securities, provided that certain successors that are permitted
pursuant to the Indenture may succeed to the Company's ownership of the Common
Securities, (iii) not to voluntarily dissolve the Issuer, except (a) in
connection with a distribution of the Debentures to the holders of the Preferred
Securities in dissolution of the Issuer or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement, (iv)
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, (v) to use its reasonable efforts, consistent with
the terms and provisions of the Trust Agreement, to cause the Issuer to remain
classified as a grantor trust and not as an association taxable as a corporation
for United States Federal income tax purposes and (vi) to deliver shares of
Common Stock upon an election by the holders of the Preferred Securities to
convert such Preferred Securities into Common Stock.
As part of the Guarantee, the Company will agree to honor all obligations
described therein relating to the conversion or exchange of the Preferred
Securities into or for Common Stock or Debentures.
EVENTS OF DEFAULT
An event of default under the Guarantee will occur upon the failure of the
Company to perform any of its payment or other obligations thereunder. The
holders of a majority in aggregate liquidation preference of the Preferred
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 the
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under the Guarantee.
If the Guarantee Trustee fails to enforce the Guarantee, any holder of the
Preferred Securities may institute a legal proceeding directly against the
Company to enforce its rights under the Guarantee without first instituting a
legal proceeding against the Issuer, the Guarantee Trustee or any other person
or entity. In addition, any record holder of Preferred Securities shall have the
right, which is absolute and unconditional, to proceed directly against the
Company to obtain Guarantee Payments, without first waiting to determine if the
Guarantee Trustee has enforced the Guarantee or instituting a legal proceeding
against the Issuer, the Guarantee Trustee or any other person or entity. The
Company has waived any right or remedy to require that any action be brought
just against the Issuer, or any other person or entity, before proceeding
directly against the Company.
The Company, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not the Company is in
compliance with all the conditions and covenants applicable to it under the
Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a default by the Company in performance of the Guarantee, undertakes to perform
only such duties as are specifically set forth in the
PS-29
<PAGE> 55
Guarantee and, after default with respect to the Guarantee, must exercise the
same degree of care and skill as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs. Subject to this
provision, the Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by the Guarantee at the request of any holder of Preferred
Securities unless it is offered reasonable indemnity against the costs, expenses
and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
The Guarantee will terminate and be of no further force and effect upon
full payment of the redemption price of the Preferred Securities, upon full
payment of the amounts payable upon dissolution of the Issuer, upon the
distribution, if any, of Common Stock to the holders of Preferred Securities in
respect of the conversion of all such holders' Preferred Securities into Common
Stock or upon distribution of Debentures to the holders of the Preferred
Securities in exchange for all of the Preferred Securities. The Guarantee will
continue to be effective or will be reinstated, as the case may be, if at any
time any holder of Preferred Securities must restore payment of any sums paid
under such Preferred Securities or the Guarantee.
GOVERNING LAW
The Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE DEBENTURES AND THE GUARANTEE
FULL AND UNCONDITIONAL GUARANTEE
Payments of Distributions and other amounts due on any Preferred Securities
(to the extent the applicable Issuer has funds available for the payment of such
Distributions) will be irrevocably guaranteed by the Company as and to the
extent set forth under "Description of the Guarantee." Taken together, the
Company's obligations under the applicable Debentures, the applicable Indenture,
the applicable Trust Agreement and the applicable Guarantee provide, in the
aggregate, a full, irrevocable and unconditional guarantee of payments of
Distributions and other amounts due on such Preferred Securities. No single
document standing alone or operating in conjunction with fewer than all of the
other documents constitutes such guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of the Issuer's obligations under the Preferred
Securities. If and to the extent that the Company does not make payments on the
Debentures, the Issuer will not pay Distributions or other amounts due on the
Preferred Securities. The Guarantee does not cover payment of Distributions when
the Issuer does not have sufficient funds to pay such Distributions. In such
event, a holder of Preferred Securities may institute a Direct Action directly
against the Company to enforce payment of such Distributions to such holder
after the respective due dates. The obligations of the Company under the
Guarantee will be subordinate and junior in right of payment to all other
liabilities of the Company and rank pari passu with the most senior preferred
stock, if any, now or hereafter issued by the Company and with any guarantee now
or hereafter entered into by the Company in respect of any preferred or
preference stock of any affiliate of the Company.
SUFFICIENCY OF PAYMENTS
As long as payments of interest and other payments are made when due on the
Debentures, such payments will be sufficient to cover Distributions and other
payments due on the Preferred Securities, primarily because (i) the aggregate
principal amount of the Debentures is equal to the sum of the aggregate stated
liquidation preference of the Trust Securities; (ii) the interest rate and
interest and other payment dates on the Debentures match the Distribution rate
and Distribution and other payment dates for the Preferred Securities; (iii) the
Company pays for all and any costs, expenses and liabilities of the Issuer
except the Issuer's obligations to holders of the Preferred Securities under
such Preferred Securities; and (iv) the Trust Agreement further provides that
the Issuer will not engage in any activity that is not consistent with the
limited purposes of the Issuer.
PS-30
<PAGE> 56
Notwithstanding anything to the contrary in the Indenture, the Company has
the right to set off any payment it is otherwise required to make thereunder
with and to the extent the Company has theretofore made, or is concurrently on
the date of such payment making, a payment under the Guarantee.
ENFORCEMENT RIGHTS OF HOLDERS OF PREFERRED SECURITIES
A holder of any Preferred Securities may institute a legal proceeding
directly against the Company to enforce its rights under the Guarantee without
first instituting a legal proceeding against the Guarantee Trustee, the Issuer
or any other person or entity.
A default or event of default under any Senior Debt of the Company will not
constitute a default under the Indenture or a Debenture Event of Default.
However, in the event of payment defaults under, or acceleration of, Senior Debt
of the Company, the subordination provisions of the Indenture provide that no
payments may be made in respect of the Debentures until such Senior Debt has
been paid in full or any payment default thereunder has been cured or waived.
Failure to make required payments on the Debentures would constitute a Debenture
Event of Default.
LIMITED PURPOSE OF ISSUERS
The Preferred Securities evidence a beneficial interest in the applicable
Issuer, and the Issuers exist for the sole purpose of issuing the Trust
Securities and investing the proceeds thereof in the Debentures. A principal
difference between the rights of a holder of Preferred Securities and a holder
of Debentures is that a holder of Debentures is entitled to receive from the
Company the principal amount of and interest accrued on Debentures held, while a
holder of Preferred Securities is entitled to receive Distributions from the
Issuer (or from the Company under the applicable Guarantee) if and to the extent
the Issuer has funds available for the payment of such Distributions.
RIGHTS UPON DISSOLUTION
Upon any voluntary or involuntary dissolution of the Issuer involving the
liquidation of the Debentures, after satisfaction of the liabilities of
creditors of the Issuer as provided by applicable law, the holders of the
Preferred Securities will be entitled to receive, out of assets held by the
Issuer, the Liquidation Distribution in cash. See "Description of the Preferred
Securities -- Liquidation Distribution upon Dissolution." Upon any voluntary or
involuntary liquidation or bankruptcy of the Company, the Property Trustee, as
holder of the Debentures, would be a subordinated creditor of the Company,
subordinated in right of payment to all Senior Debt, but entitled to receive
payment in full of principal and interest before any stockholders of the Company
receive payments or distributions. Since the Company is the guarantor under the
Guarantee and has agreed to pay for all costs, expenses and liabilities of the
Issuer (other than the Issuer's obligations to the holders of the Preferred
Securities), the positions of a holder of such Preferred Securities and a holder
of such Debentures relative to other creditors and to stockholders of the
Company in the event of liquidation or bankruptcy of the Company would be
substantially the same.
PS-31
<PAGE> 57
DESCRIPTION OF CAPITAL STOCK
Pursuant to the Company's Second Restated Certificate of Incorporation, as
amended ("Certificate of Incorporation"), the Company's authorized capital stock
consists of 100,000,000 shares of Common Stock and 5,000,000 shares of Preferred
Stock. As of July 31, 1998, the Company had 36,191,985 shares of Common Stock
issued and outstanding and no shares of Preferred Stock issued and outstanding.
COMMON STOCK
Holders of Common Stock are entitled to one vote per share in the election
of directors and on all other matters submitted to a vote of common stockholders
and do not have cumulative voting rights.
Holders of Common Stock are entitled to receive ratably such dividends, if
any, as may be declared by the Company's Board of Directors out of funds legally
available therefore, subject to any preferential dividend rights of outstanding
preferred stock. The Company does not intend to pay cash dividends on the Common
Stock in the foreseeable future. Upon the liquidation, dissolution or winding up
of the Company, the holders of Common Stock are entitled to receive ratably the
net assets of the Company available after payment of all debts and other
liabilities, subject to the prior rights of any outstanding preferred stock.
Holders of Common Stock have no preemptive, subscription, redemption or
conversion rights.
PREFERRED STOCK
Under the Company's Certificate of Incorporation, the Board of Directors is
authorized, without further stockholder action, to provide for the issuance of
up to 5,000,000 shares of Preferred Stock in one or more series, with such
voting powers, or without voting powers, and with such designations, preferences
and relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be set forth in
resolutions providing for the issuance thereof adopted by the Board of
Directors. As of the date of this Prospectus, no shares of Preferred Stock are
outstanding or designated as to series. It is not possible to state the actual
effect of the authorization and issuance of a new series of Preferred Stock upon
the rights of holders of the Common Stock and other series of Preferred Stock
unless and until the Board of Directors determines the attributes of such new
series of Preferred Stock and the specific rights of its holders. Such effects
might include, however, (i) restrictions on dividends on Common Stock and other
series of Preferred Stock if dividends on such new series of Preferred Stock
have not been paid; (ii) dilution of the voting power of Common Stock and other
series of Preferred Stock to the extent that such new series of Preferred Stock
has voting rights, or to the extent that any such new series of Preferred Stock
is convertible into Common Stock; (iii) dilution of the equity interest of
Common Stock and other series of Preferred Stock; and (iv) limitation on the
right of holders of Common Stock and other series of Preferred Stock to share in
the Company's assets upon liquidation until satisfaction of any liquidation
preference attributable to such new series of Preferred Stock. While the ability
of the Company to issue Preferred Stock provides flexibility in connection with
possible acquisitions and other corporate purposes, its issuance could be used
to impede an attempt by a third party to acquire a majority of the outstanding
voting stock of the Company.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Common Stock is ChaseMellon
Shareholder Services L.L.C.
ANTI-TAKEOVER PROVISIONS
The Certificate of Incorporation and the Company's Restated Bylaws (the
"Bylaws") of the Company and the Delaware General Corporation Law (the "DGCL")
include a number of provisions which may have the effect of encouraging persons
considering unsolicited tender offers or other unilateral takeover proposals to
negotiate with the Company's Board of Directors rather than pursue
non-negotiated takeover attempts.
Stockholder Action by Written Consent. Under the DGCL, unless the
certificate of incorporation of a corporation specifies otherwise, any action
that could be taken by stockholders at an annual or special meeting may be taken
without a meeting and without notice to or a vote of other stockholders if a
consent in writing is
PS-32
<PAGE> 58
signed by the holders of outstanding stock having voting power that would be
sufficient to take such action at a meeting at which all outstanding shares were
present and voted. The Certificate of Incorporation and the Bylaws of the
Company provide that stockholder action may be taken in writing by the consent
of holders of not less than 66 2/3% of the outstanding shares entitled to vote
at a meeting of stockholders. As a result, stockholders may not act upon any
matter except at a duly called meeting or by the written consent of holders of
66 2/3% or more of the outstanding shares entitled to vote.
Supermajority Vote Required for Certain Transactions. The affirmative vote
of the holders of at least 66 2/3% of the outstanding shares of Common Stock is
required to approve any merger or consolidation of the Company or any sale or
transfer of all or substantially all of the assets of the Company.
Blank Check Preferred Stock. The Certificate of Incorporation of the
Company authorizes blank check Preferred Stock. The Board of Directors of the
Company can set the voting, redemption, conversion and other rights relating to
such Preferred Stock and can issue such stock in either a private or public
transaction. The issuance of Preferred Stock, while providing desired
flexibility in connection with possible acquisitions and other corporate
purposes, could adversely affect the voting power of holders of Common Stock and
the likelihood that such holders will receive dividend payments and payments
upon liquidation and could have the effect of delaying, deferring or preventing
a change in control of the Company.
Delaware Takeover Statute. The Company is subject to Section 203 of the
DGCL. In general, Section 203 prevents an interested stockholder (i.e., any
person owning 15% or more of the Company's outstanding voting stock) from
engaging in a business combination (as defined below) with a Delaware
corporation for a period of three years from the time such person becomes an
interested stockholder of such corporation, unless (i) before such person became
an interested stockholder, the board of directors of the corporation approved
the business combination or the transaction in which the interested stockholder
became an interested stockholder; (ii) upon consummation of the transaction that
resulted in the interested stockholder's becoming an interested stockholder, the
interested stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding stock held by
directors who are also officers of the corporation and stock held by certain
employee stock plans; or (iii) on or subsequent to the time of the transaction
in which such person became an interested stockholder, the business combination
is approved by the board of directors of the corporation and authorized at a
meeting of stockholders by the affirmative vote of the holders of at least
two-thirds of the outstanding voting stock of the corporation not owned by the
interested stockholder.
Section 203 defines a "business combination" to include (i) any merger or
consolidation involving a corporation and an interested stockholder, (ii) any
sale, transfer, pledge or other disposition of 10% or more of the assets of the
corporation involving an interested stockholder, (iii) subject to certain
exceptions, any transaction which results in the issuance or transfer by the
corporation of any stock of the corporation to an interested stockholder, (iv)
any transaction involving the corporation which has the effect of increasing the
proportionate share of the stock of any class or series of the corporation
beneficially owned by the interested stockholder or (v) the receipt by an
interested stockholder of any loans, guarantees, pledges or other financial
benefits provided by or through the corporation. In general, Section 203 defines
an "interested stockholder" as any entity or person beneficially owning 15% or
more of the outstanding voting stock of the corporation and any entity or person
affiliated with or controlling or controlled by such entity or person.
PLAN OF DISTRIBUTION
GENERAL
The Securities offered hereby may be sold in any one or more of the
following ways from time to time: (i) to or through underwriters; (ii) through
dealers; (iii) directly to other purchasers or (iv) through agents.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, or at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
PS-33
<PAGE> 59
In connection with the sale of Securities, underwriters may receive
compensation from the Company or the applicable Issuer, or from purchasers of
Securities for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters, dealers and agents that participate in
the distribution of Securities may be deemed to be underwriters, and any
discounts or commissions received by them from the Company or the applicable
Issuer, as the case may be, and any profit on the resale of Securities by them
may be deemed to be underwriting discounts and commissions under the Securities
Act. Any such person who may be deemed to be an underwriter will be identified,
and any such compensation received from the Company will be described, in the
Prospectus Supplement.
During and after an offering through underwriters, such underwriters may
purchase and sell the Securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the Securities sold for their
account may be reclaimed by the syndicate if such Securities are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the Securities,
which may be higher than the price that might otherwise prevail in the open
market, and, if commenced, may be discontinued at any time.
The Securities, when first issued, will have no established trading market.
Any underwriters or agents to or through whom such Securities are sold for
public offering and sale may make a market in such Securities, but such
underwriters or agents will not be obligated to do so and may discontinue any
market making at any time without notice. No assurance can be given as to the
liquidity of the trading market for any such Securities.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Securities may be
entitled to indemnification by the Company or the applicable Issuer against or
contribution toward certain liabilities, including liabilities under the
Securities Act.
VALIDITY OF SECURITIES
The validity of the Securities (other than the Preferred Securities) will
be passed on for the Company and the Issuers by Vinson & Elkins L.L.P., Houston,
Texas. Certain legal matters in connection with the offering of the Preferred
Securities will be passed upon for any agents, dealers or underwriters by Baker
& Botts, L.L.P., Houston, Texas. The validity of the Preferred Securities will
be passed upon for the Company and the Issuers by Richards, Layton & Finger,
P.A., special Delaware counsel to the Company and the Issuers.
EXPERTS
The consolidated financial statements of Newfield Exploration Company
appearing in Newfield
Exploration Company's Annual Report (Form 10-K) for the year ended December 31,
1997, which is incorporated in this Prospectus and Registration Statement by
reference, have been audited by PricewaterhouseCoopers LLP, independent public
accountants, as set forth in their report thereon included therein and
incorporated by reference herein. Such consolidated financial statements have
been incorporated by reference herein in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
Certain information included or incorporated by reference in this
Prospectus relating to the Company's proved oil and gas reserves and future net
cash flows therefrom is derived from estimates prepared by Ryder Scott Company,
Petroleum Engineers, and is incorporated by reference herein in reliance upon
such firm as experts with respect to such matters.
PS-34
<PAGE> 60
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth all expenses payable by the Company in
connection with the issuance and distribution of the Securities. All the amounts
shown are estimates, except the registration fee.
<TABLE>
<S> <C>
Registration fee............................................ $ 81,125
Fees and expenses of accountants............................ 35,000
Fees and expenses of legal counsel.......................... 125,000
Fees and expenses of Trustee and counsel.................... 7,500
Printing and engraving expenses............................. 85,000
Blue Sky fees and expenses (including counsel).............. 5,000
Miscellaneous............................................... 11,375
--------
Total............................................. $350,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL"), a Delaware corporation has the power, under specified
circumstances, to indemnify its directors, officers, employees and agents in
connection with threatened, pending or completed actions, suits or proceedings,
whether civil, criminal, administrative or investigative (other than an action
by or in right of the corporation), brought against them by reason of the fact
that they were or are such directors, officers, employees or agents, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred in any such action, suit or proceeding. Article Seventh of
the Company's Second Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), together with Article VI of its Restated Bylaws
(the "Bylaws") provide for indemnification of each person who is or was made a
party to any actual or threatened civil, criminal, administrative or
investigative action, suit or proceeding because such person is, was or has
agreed to become an officer or director of the Company or is a person who is or
was serving or has agreed to serve at the request of the Company as a director,
officer, partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another corporation or of a partnership, joint venture, sole
proprietorship, trust (including the Issuers), employee benefit plan or other
enterprise to the fullest extent permitted by the DGCL as it existed at the time
the indemnification provisions of the Certificate of Incorporation and Bylaws
were adopted or as may be thereafter amended. Article VI of the Bylaws expressly
provides that it is not the exclusive method of indemnification.
Article Seventh of the Certificate of Incorporation and Article VI of the
Bylaws also provide that the Company may maintain insurance, at its own expense,
to protect itself and any director, officer, employee or agent of the Company or
of another entity against any expense, liability or loss, regardless of whether
the Company would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
Section 102(b)(7) of the DGCL provides that a certificate of incorporation
may contain a provision eliminating or limiting the personal liability of a
director to the corporation or its stockholders for monetary damages for breach
of fiduciary duty as a director, provided that such provision shall not
eliminate or limit the liability of a director (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
liability for unauthorized acquisitions or redemptions of, or dividends on,
capital stock) or (iv) for any transaction from which the director derived an
improper personal benefit. Article Seventh of the Certificate of Incorporation
contains such a provision.
Under Section 8.6 of the Forms of Amended and Restated Trust Agreement (the
"Trust Agreement") among the Company, First Union National Bank, First Union
Trust Company, National Association and the
II-1
<PAGE> 61
Administrative Trustees named therein filed as exhibits to the Registration
Statement, the Company will agree to the fullest extent permitted by applicable
law, to indemnify and hold harmless (i) each Trustee under the Trust Agreement
(which includes three officers of the Company), (ii) any affiliate of any such
Trustee, (iii) any officer, director, shareholder, employee, representative or
agent of any such Trustee, and (iv) any employee or agent of the Issuer 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, dissolution or termination of the Issuer or in connection with the
administration of the Issuer or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Issuer and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by the Trust Agreement, 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 negligence or
willful misconduct with respect to such acts or omissions.
Howard H. Newman, a director of the Company and a Managing Director of E.
M. Warburg, Pincus & Co., LLC ("Warburg"), is indemnified by an affiliate of
Warburg against certain liabilities that he may incur as a result of his serving
as a director of the Company. Thomas G. Ricks, a director of the Company and
President and Chief Executive Officer of The University of Texas Investment
Management Company ("UTIMCO"), is indemnified by UTIMCO against certain
liabilities that he may incur as a result of his serving as a director of the
Company.
The Underwriting Agreements that the Company may enter into with respect to
the offer and sale of Securities covered by this Registration Statement will
contain certain provisions for the indemnification of directors and officers of
the Company and the Underwriters against civil liabilities under the Securities
Act.
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this Registration
Statement, including those exhibits incorporated herein by reference to a prior
filing of the Company under the Securities Act or the Exchange Act as indicated
in parentheses:
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBITS
----------- --------
<C> <S>
***1.1 -- Form of Underwriting Agreement (Debt Securities).
***1.2 -- Form of Underwriting Agreement (Common Stock).
***1.3 -- Form of Underwriting Agreement (Preferred Stock).
***1.4 -- Form of Underwriting Agreement (Securities Warrants).
***1.4 -- Form of Underwriting Agreement (Preferred Securities).
4.1 -- Second Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69540)).
4.1.1 -- Certificate of Amendment to Second Restated Certificate
of Incorporation of the Company dated May 15, 1997
(incorporated by reference to Exhibit 3.1.1 to the
Company's Registration Statement on Form S-3
(Registration No. 333-32582)).
4.2 -- Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form
10-K for the year ended December 31, 1994).
4.3 -- Indenture dated as of October 15, 1997 among the Company,
as issuer, and First Union National Bank, as trustee
(incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4
(Registration No. 333-39563)).
*4.4 -- Form of Senior Debt Indenture for senior notes.
*4.5 -- Form of Senior Debt Indenture for senior subordinated
notes (set forth as Exhibit 4.4 hereto).
*4.6 -- Form of Subordinated Debt Indenture.
</TABLE>
II-2
<PAGE> 62
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBITS
----------- --------
<C> <S>
***4.7 -- Form of Debt Securities.
***4.8 -- Form of Securities Warrants.
***4.9 -- Form of Depositary Agreement.
***4.10 -- Form of Depositary Receipt.
*4.11 -- Certificate of Trust of Newfield Financial Trust I.
*4.12 -- Trust Agreement of Newfield Financial Trust I.
*4.13 -- Form of Amended and Restated Trust Agreement of Newfield
Financial Trust I.
*4.14 -- Form of Trust Preferred Security Certificate of Newfield
Financial Trust I (included in Exhibit 4.13).
*4.15 -- Certificate of Trust of Newfield Financial Trust II.
*4.16 -- Trust Agreement of Newfield Financial Trust II.
*4.17 -- Form of Amended and Restated Trust Agreement of Newfield
Financial Trust II (set forth as Exhibit 4.13).
*4.18 -- Form of Trust Preferred Security Certificate for Newfield
Financial Trust II (included in Exhibit 4.17).
*4.19 -- Form of Junior Convertible Subordinated Indenture
relating to Debentures to be issued to Newfield Financial
Trust I.
*4.20 -- Form of Debentures of the Company to be issued to
Newfield Financial Trust I (included in Exhibit 4.19).
*4.21 -- Form of Junior Convertible Subordinated Indenture
relating to Debentures to be issued to Newfield Financial
Trust II (set forth as Exhibit 4.19).
*4.22 -- Form of Debentures of the Company to be issued to
Newfield Financial Trust II (included in Exhibit 4.21).
*4.23 -- Form of Guarantee with respect to the Preferred
Securities issued by Newfield Financial Trust I.
*4.24 -- Form of Guarantee with respect to the Preferred
Securities issued by Newfield Financial Trust II (set
forth as Exhibit 4.23).
*5.1 -- Opinion of Vinson & Elkins L.L.P.
*5.2 -- Opinion of Richards, Layton & Finger, P.A., as to the
validity of the Preferred Securities of Newfield
Financial Trust I.
*5.3 -- Opinion of Richards, Layton & Finger, P.A., as to the
validity of the Preferred Securities of Newfield
Financial Trust II.
***8.1 -- Opinion of Vinson & Elkins L.L.P. relating to certain tax
matters.
*12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
**23.1 -- Consent of PricewaterhouseCoopers LLP.
**23.2 -- Consent of Ryder Scott Company.
*23.3 -- Consent of Vinson & Elkins L.L.P. (included in Exhibits
5.1 and 8.1).
*23.4 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2 and 5.3).
**24.1 -- Powers of Attorney.
</TABLE>
II-3
<PAGE> 63
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBITS
----------- --------
<C> <S>
*25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture for senior notes.
*25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture for senior subordinated notes.
*25.3 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Debt Indenture.
*25.4 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Indenture relating to the Debentures to be issued to
Newfield Financial Trust I.
*25.5 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Indenture relating to the Debentures to be issued to
Newfield Financial Trust II.
*25.6 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under
Guarantee with respect to the Preferred Securities of
Newfield Financial Trust I.
*25.7 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under
Guarantee with respect to the Preferred Securities of
Newfield Financial Trust II.
*25.8 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the property trustee
under the Amended and Restated Trust Agreement of
Newfield Financial Trust I.
*25.9 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the property trustee
under the Amended and Restated Trust Agreement of
Newfield Financial Trust II.
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
*** The Company will file as an exhibit to a Current Report on Form 8-K (i) any
form of Debt Securities, Securities Warrant Agreement or Securities
Warrants, Depositary Receipts or Depositary Agreement and any Preferred
Stock certificate or certificate of designations, (ii) any form of
underwriting agreement to be used in connection with an offering of
securities and (iii) any opinions of Vinson & Elkins L.L.P. not previously
filed.
ITEM 17. UNDERTAKINGS.
(a) The registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate
II-4
<PAGE> 64
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(l)(i) and (a)(l)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrants pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in the
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 a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in 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.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The registrants hereby undertake that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefits 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.
(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 any charter provision, by-law, contract, arrangement,
statute or otherwise, the registrants have been advised that in the opinion of
the Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such labilities (other than the payment by the
registrants of expenses incurred or paid by a director, officer or controlling
person of the registrants in the successful defense of any action, suit or
proceeding) is asserted against the registrants by such director, officer or
controlling person in connection with the securities being registered, the
registrants will, unless in the opinion of counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final adjudication
of such issue.
(e) The registrants hereby undertake to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a) of
section 310 of the Trust Indenture Act ("Act") in accordance with the rules and
regulations prescribed by the Commission under section 305(b)(2) of the Act.
II-5
<PAGE> 65
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on the 3rd day of September,
1998.
NEWFIELD EXPLORATION COMPANY
By /s/ JOE B. FOSTER
-----------------------------------
Joe B. Foster
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on September 3, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ JOE B. FOSTER Chairman of the Board, President and Chief
- ----------------------------------------------------- Executive Officer (Principal Executive
Joe B. Foster Officer)
* Vice President -- Operations and Director
- -----------------------------------------------------
Robert W. Waldrup
/s/ TERRY W. RATHERT Vice President -- Planning and Administration
- ----------------------------------------------------- and Secretary (Principal Financial Officer)
Terry W. Rathert
* Controller and Assistant Secretary (Principal
- ----------------------------------------------------- Accounting Officer)
Ronald P. Lege
* Director
- -----------------------------------------------------
Philip J. Burguieres
* Director
- -----------------------------------------------------
Charles W. Duncan, Jr.
* Director
- -----------------------------------------------------
Dennis R. Hendrix
* Director
- -----------------------------------------------------
Terry Huffington
Director
- -----------------------------------------------------
Howard H. Newman
* Director
- -----------------------------------------------------
Thomas G. Ricks
* Director
- -----------------------------------------------------
John C. Sawhill
</TABLE>
II-6
<PAGE> 66
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Director
- -----------------------------------------
C.E. Shultz
*By: /s/ TERRY W. RATHERT
- -----------------------------------------
Terry W. Rathert
Attorney-in-fact
</TABLE>
II-7
<PAGE> 67
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of
Newfield Financial Trust I and Newfield Financial Trust II certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-3 and has duly caused this Registration Statement on Form S-3 to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Houston, State of Texas, on September 3, 1998.
NEWFIELD FINANCIAL TRUST I
NEWFIELD FINANCIAL TRUST II
By: NEWFIELD EXPLORATION COMPANY,
as Depositor
----------------------------------
By: /s/ TERRY W. RATHERT
--------------------------------
Terry W. Rathert
Vice President -- Planning and
Administration and Secretary
II-8
<PAGE> 68
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBITS
----------- --------
<C> <S>
***1.1 -- Form of Underwriting Agreement (Debt Securities).
***1.2 -- Form of Underwriting Agreement (Common Stock).
***1.3 -- Form of Underwriting Agreement (Preferred Stock).
***1.4 -- Form of Underwriting Agreement (Securities Warrants).
***1.4 -- Form of Underwriting Agreement (Preferred Securities).
4.1 -- Second Restated Certificate of Incorporation of the
Company (incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
(Registration No. 33-69540)).
4.1.1 -- Certificate of Amendment to Second Restated Certificate
of Incorporation of the Company dated May 15, 1997
(incorporated by reference to Exhibit 3.1.1 to the
Company's Registration Statement on Form S-3
(Registration No. 333-32582)).
4.2 -- Restated Bylaws of the Company (incorporated by reference
to Exhibit 3.2 to the Company's Annual Report on Form
10-K for the year ended December 31, 1994).
4.3 -- Indenture dated as of October 15, 1997 among the Company,
as issuer, and First Union National Bank, as trustee
(incorporated by reference to Exhibit 4.3 to the
Company's Registration Statement on Form S-4
(Registration No. 333-39563)).
*4.4 -- Form of Senior Debt Indenture for senior notes.
*4.5 -- Form of Senior Debt Indenture for senior subordinated
notes (set forth as Exhibit 4.4 hereto).
*4.6 -- Form of Subordinated Debt Indenture.
***4.7 -- Form of Debt Securities.
***4.8 -- Form of Securities Warrants.
***4.9 -- Form of Depositary Agreement.
***4.10 -- Form of Depositary Receipt.
*4.11 -- Certificate of Trust of Newfield Financial Trust I.
*4.12 -- Trust Agreement of Newfield Financial Trust I.
*4.13 -- Form of Amended and Restated Trust Agreement of Newfield
Financial Trust I.
*4.14 -- Form of Trust Preferred Security Certificate of Newfield
Financial Trust I (included in Exhibit 4.13).
*4.15 -- Certificate of Trust of Newfield Financial Trust II.
*4.16 -- Trust Agreement of Newfield Financial Trust II.
*4.17 -- Form of Amended and Restated Trust Agreement of Newfield
Financial Trust II (set forth as Exhibit 4.13).
*4.18 -- Form of Trust Preferred Security Certificate for Newfield
Financial Trust II (included in Exhibit 4.17).
*4.19 -- Form of Junior Convertible Subordinated Indenture
relating to Debentures to be issued to Newfield Financial
Trust I.
*4.20 -- Form of Debentures of the Company to be issued to
Newfield Financial Trust I (included in Exhibit 4.19).
*4.21 -- Form of Junior Convertible Subordinated Indenture
relating to Debentures to be issued to Newfield Financial
Trust II (set forth as Exhibit 4.19).
*4.22 -- Form of Debentures of the Company to be issued to
Newfield Financial Trust II (included in Exhibit 4.21).
*4.23 -- Form of Guarantee with respect to the Preferred
Securities issued by Newfield Financial Trust I.
</TABLE>
<PAGE> 69
<TABLE>
<CAPTION>
EXHIBIT NO. EXHIBITS
----------- --------
<C> <S>
*4.24 -- Form of Guarantee with respect to the Preferred
Securities issued by Newfield Financial Trust II (set
forth as Exhibit 4.23).
*5.1 -- Opinion of Vinson & Elkins L.L.P.
*5.2 -- Opinion of Richards, Layton & Finger, P.A., as to the
validity of the Preferred Securities of Newfield
Financial Trust I.
*5.3 -- Opinion of Richards, Layton & Finger, P.A., as to the
validity of the Preferred Securities of Newfield
Financial Trust II.
***8.1 -- Opinion of Vinson & Elkins L.L.P. relating to certain tax
matters.
*12.1 -- Calculation of Ratio of Earnings to Fixed Charges.
**23.1 -- Consent of PricewaterhouseCoopers LLP.
**23.2 -- Consent of Ryder Scott Company.
*23.3 -- Consent of Vinson & Elkins L.L.P. (included in Exhibits
5.1 and 8.1).
*23.4 -- Consent of Richards, Layton & Finger, P.A. (included in
Exhibits 5.2 and 5.3).
**24.1 -- Powers of Attorney.
*25.1 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture for senior notes.
*25.2 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Senior Debt Indenture for senior subordinated notes.
*25.3 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Subordinated Debt Indenture.
*25.4 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Indenture relating to the Debentures to be issued to
Newfield Financial Trust I.
*25.5 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under the
Indenture relating to the Debentures to be issued to
Newfield Financial Trust II.
*25.6 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under
Guarantee with respect to the Preferred Securities of
Newfield Financial Trust I.
*25.7 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the trustee under
Guarantee with respect to the Preferred Securities of
Newfield Financial Trust II.
*25.8 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the property trustee
under the Amended and Restated Trust Agreement of
Newfield Financial Trust I.
*25.9 -- Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the property trustee
under the Amended and Restated Trust Agreement of
Newfield Financial Trust II.
</TABLE>
- ---------------
* Filed herewith.
** Previously filed.
*** The Company will file as an exhibit to a Current Report on Form 8-K (i) any
form of Debt Securities, Securities Warrant Agreement or Securities
Warrants, Depositary Receipts or Depositary Agreement and any Preferred
Stock certificate or certificate of designations, (ii) any form of
underwriting agreement to be used in connection with an offering of
securities and (iii) any opinions of Vinson & Elkins L.L.P. not previously
filed.
<PAGE> 1
EXHIBIT 4.4
================================================================================
NEWFIELD EXPLORATION COMPANY
TO
------------------------------
TRUSTEE
------------------------------
SENIOR INDENTURE
Dated as of __________, 199__
================================================================================
<PAGE> 2
NEWFIELD EXPLORATION COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF ___________, 199__
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ---------------- -----------------
<S> <C>
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
(b) .............................................................................. 702
(c) .............................................................................. 702
Section 313(a) .............................................................................. 703
(b) .............................................................................. 703
(c) .............................................................................. 703
(d) .............................................................................. 703
Section 314(a)(1)-(3) .............................................................................. 704, 1006
(a)(4) .............................................................................. 101
.............................................................................. 1004
(b) .............................................................................. Not applicable
(c)(1) .............................................................................. 102
(c)(2) .............................................................................. 102
(c)(3) .............................................................................. Not Applicable
(d) .............................................................................. Not Applicable
(e) .............................................................................. 102
Section 315(a) .............................................................................. 601
(b) .............................................................................. 602
(c) .............................................................................. 601
(d) .............................................................................. 601
(e) .............................................................................. 514
Section 316(a) .............................................................................. 101
(a)(1)(A) .............................................................................. 502
.............................................................................. 512
(a)(1)(B) .............................................................................. 513
(a)(2) .............................................................................. Not applicable
(b) .............................................................................. 508
(c) .............................................................................. 104
Section 317(a)(1) .............................................................................. 503
(a)(2) .............................................................................. 504
(b) .............................................................................. 1003
Section 318(a) .............................................................................. 108
</TABLE>
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
-a-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
ARTICLE ONE
Definitions and Other Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -1-
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . -7-
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
SECTION 105. Notice, Etc., to Trustee and Company. . . . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . . . . . . . . . . . . . -10-
SECTION 107. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -11-
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -12-
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . -13-
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -13-
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . -14-
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . -14-
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -17-
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . -17-
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -19-
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . -21-
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities and Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . . . -24-
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . -25-
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -26-
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . -28-
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . -30-
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . -31-
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . . . . . . . . . . . . . . . . . . . . . -32-
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . -33-
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -34-
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . -35-
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . -36-
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -37-
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . -38-
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -38-
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . -39-
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . -39-
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . -39-
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . -40-
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . -41-
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . . . . . . . . . . . . . . . . . . . -42-
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . -42-
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . -43-
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . -44-
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . -44-
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . -45-
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -45-
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -45-
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . -46-
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . -46-
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -46-
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -47-
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . -47-
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . -48-
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . -49-
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . -49-
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -50-
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . -50-
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . -50-
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . -51-
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -52-
SECTION 1005. Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . . -53-
SECTION 1006. Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . -53-
SECTION 1007. Statement by Officer as to Default . . . . . . . . . . . . . . . . . . . . . . . . -53-
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . -53-
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 1103. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . -54-
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -55-
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . -56-
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . -56-
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . -57-
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -57-
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -57-
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . -57-
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . -58-
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -58-
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -58-
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -58-
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -59-
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . -59-
SECTION 1305. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions. . . . . . . . . . . -61-
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C>
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -61-
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -62-
SECTION 1405. Determination of Voting Rights;
Conduct and Adjournment of Meetings . . . . . . . . . . . . . . . . . . . . . -63-
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . -64-
</TABLE>
-iv-
<PAGE> 7
THIS SENIOR INDENTURE, dated as of _________, 199__, is between
NEWFIELD EXPLORATION COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), having its
principal office at 363 N. Sam Houston Parkway E., Suite 2020, Houston, Texas
77060, and FIRST UNION NATIONAL BANK, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series, on either a senior or a
senior subordinated basis, as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of America, 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 of America as of the
date of such computation; and
<PAGE> 8
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision, and the
words "date of this Indenture" and "date hereof" and other words of
similar import refer to the effective date of the original execution
and delivery of this Indenture, viz. ______________, 19__.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same
city meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, such a
Security in temporary or permanent global form.
"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 or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday,
INDENTURE
-2-
<PAGE> 9
Thursday and Friday which is not a day on which banking institutions in that
Place of Payment or other location are authorized or obligated by law or
executive order to close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Certification Date" means with respect to Securities of any series
(i), if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially
represented by a temporary global Security, the earlier of (A) the Exchange
Date with respect to Securities of such series and (B), if the first Interest
Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman
of the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office shall be located at 230 Tryon Street, Ninth Floor, Charlotte, North
Carolina 28288-1179 or such other address as the Trustee may give notice thereof
to the Company.
The term "corporation" means a corporation, association, limited
liability company, joint-stock company or business trust.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the clearing agency registered under the Securities Exchange Act of
1934, specified for that purpose as contemplated by Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
INDENTURE
-3-
<PAGE> 10
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
"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.
The term "interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"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.
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, Vice Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel, who is
acceptable to the Trustee. The Counsel may be an employee of or counsel for the
Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount payable upon the Stated Maturity
thereof to be due and payable upon redemption thereof or upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
INDENTURE
-4-
<PAGE> 11
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or currencies, including composite
currencies, shall be the Dollar equivalent, determined on the date of original
issuance of such Security in the manner provided as contemplated by Section
301, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (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 authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places as specified in accordance with Section 301
where, subject to the provisions of Section 1002, the principal of and any
premium and interest on the Securities of that series are payable.
INDENTURE
-5-
<PAGE> 12
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of such security and 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 the terms of
such security and this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer in the corporate trust department (or any successor group) of
the Trustee, including any Vice President, any Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" with respect to any Person, means (i) a corporation a
majority of whose capital stock with voting power normally entitled to vote in
the election of directors is at the time, directly or indirectly, owned by such
Person, by such Person and one or more Subsidiaries of such Person
INDENTURE
-6-
<PAGE> 13
or by one or more Subsidiaries of such Person, (ii) a partnership in which such
Person or a Subsidiary of such Person is, at the time, a general partner and
owns alone or together with one or more Subsidiaries of such Person a majority
of the partnership interests, or (iii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof has at least majority
ownership interest.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act of
1939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of
an Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
INDENTURE
-7-
<PAGE> 14
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 1406.
INDENTURE
-8-
<PAGE> 15
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Registered Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to
the first solicitation of a Holder of Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner which the Trustee deems sufficient.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
INDENTURE
-9-
<PAGE> 16
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, 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 Indenture,
to the attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder of a
Registered Security shall affect the sufficiency of such notice
INDENTURE
-10-
<PAGE> 17
with respect to other Holders of Registered Securities or the sufficiency of
any notice to Holders of Bearer Securities given as provided herein.
In case by the reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
INDENTURE
-11-
<PAGE> 18
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the Holders of Securities and coupons and, if the
Securities are subject to any subordination provisions, the holders of any
indebtedness ranking senior to the Securities, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons 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 or coupons other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the form (including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution 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 law, or with the rules of any securities exchange or to
conform to general usage, all as may, consistently herewith, be determined by
the officers executing such Securities or coupons, as evidenced by their
execution of the Securities or coupons. If temporary
INDENTURE
-12-
<PAGE> 19
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 forms of Securities or coupons of
any series (or any such temporary global Security) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the Trustee
at or prior to the delivery of the Company Order contemplated by Section 303
for the authentication and delivery of such Securities (or any such temporary
global Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
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 specified as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges or
redemptions. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security
INDENTURE
-13-
<PAGE> 20
in global form shall be in writing but need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and, except as
determined otherwise in the manner provided below, each such series shall rank
equally and pari passu with each other series as to right of payment of
principal and any premium and interest thereon. There shall be established in
or pursuant to a Board Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from all other
Securities);
INDENTURE
-14-
<PAGE> 21
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 304, 305,
306, 906 or 1107 and except for any Securities which, pursuant to
Section 303, are deemed never to have been authenticated and delivered
hereunder);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, and the Regular Record Date for any
interest payable on any Registered Securities on any Interest Payment
Date and whether, and under what circumstances, additional amounts
with respect to such Securities shall be payable as set forth in
Section 1004;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities
of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices
and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(8) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be so
redeemed;
INDENTURE
-15-
<PAGE> 22
(9) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(10) the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of $1,000
and any integral multiple thereof, and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable, if other than the denomination of $5,000;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other
than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in
Section 101;
(12) if the amount of payments of principal of and any
premium or interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal of and any premium or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
305;
(16) if either or both of the provisions of Section 1302
or 1303 are applicable to the Securities of such series and any
additional means of discharge pursuant to Section 1302 or 1303 and any
additional conditions to the provisions of Section 1302 or 1303;
INDENTURE
-16-
<PAGE> 23
(17) any deletions from, modifications of or additions to
any Events of Default or covenants with respect to the Securities of
such series;
(18) whether the Securities of the initial series shall be
issued upon a senior subordinated basis and, if so, the subordination
provisions applicable to such series and to any other series that may
be issued thereafter; and
(19) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture except as
permitted by Section 901(5)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided,
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, its President, its
Treasurer or its Chief Financial Officer, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Treasurer or any
Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company 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
INDENTURE
-17-
<PAGE> 24
Order shall authenticate and deliver such Securities; provided, however, that,
unless otherwise provided with respect to such series, in connection with its
original issuance, no Bearer Security shall be mailed or otherwise delivered to
any location in the United States; and provided, further, that, unless
otherwise provided with respect to such series, a Bearer Security may be
delivered in connection with its original issuance only if the Person entitled
to receive such Bearer Security shall have furnished a certificate in the form
set forth in Exhibit A to this Indenture, dated no earlier than the
Certification Date. If any Security shall be represented by a permanent global
Bearer Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner's interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and canceled.
In authenticating Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(a) that the forms of such Securities and coupons
established by or pursuant to a Board Resolution as contemplated by
Section 201 have been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities and any coupons have
been established by or pursuant to a 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, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon issuance of the first
Security of such series to be issued.
INDENTURE
-18-
<PAGE> 25
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be in global form.
A temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 1002 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange
INDENTURE
-19-
<PAGE> 26
therefor a like aggregate principal amount of definitive Securities of the same
series and of like tenor of authorized denominations; provided, however, that
no definitive Bearer Security shall be issued in exchange for a temporary
Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B to this Indenture. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that no definitive Bearer
Security or permanent global Security shall be delivered in exchange for a
temporary Bearer Security except in compliance with the conditions set forth in
Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like
tenor unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent and after the
Exchange Date, the interest of a beneficial owner of Securities of a series in
a temporary global Security shall be exchanged for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like
tenor following such beneficial owner's delivery to Euro-clear or
INDENTURE
-20-
<PAGE> 27
CEDEL S.A., as the case may be, of a certificate in the form set forth in
Exhibit A to this Indenture dated no earlier than the Certification Date.
Unless otherwise specified in such temporary global Security, any exchange
shall be made free of charge to the beneficial owners of such temporary global
Security, except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event that such
Person does not take delivery of such definitive Securities in person at the
offices of Euro-clear or CEDEL S.A. Definitive Securities in bearer form to be
delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of each series of Registered
Securities and the registration of transfers of such Registered Securities.
The Trustee shall serve initially as "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or
INDENTURE
-21-
<PAGE> 28
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. Unless otherwise
provided with respect to any series of Securities, Bearer Securities may not be
issued in exchange for Registered Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. 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
INDENTURE
-22-
<PAGE> 29
Common Depositary (which instructions shall be in writing but need not comply
with Section 102 or be accompanied by an Opinion of Counsel) by the Common
Depositary or such other depositary as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose,
to be exchanged, in whole or in part, for definitive Securities of the same
series without charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such permanent global Security, a like aggregate
principal amount of definitive Securities of the same series of authorized
denominations and of like tenor as the portion of such permanent global
Security to be exchanged which, unless the Securities of the series are not
issuable both as Bearer Securities and as Registered Securities, as specified
as contemplated by Section 301, shall be in the form of Bearer Securities or
Registered Securities, or any combination thereof, as shall be specified by the
beneficial owner thereof; provided, however, that no such exchanges may occur
during a period beginning at the opening of business 15 days before any
selection of Securities of that series for redemption and ending on the
relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such permanent global Security shall be
returned by the Trustee to the Common Depositary or such other depositary
referred to above in accordance with the instructions of the Company referred
to above. If a Registered Security is issued in exchange for any portion of
such permanent global Security after the close of business at the office or
agency where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to
the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before any selection of
INDENTURE
-23-
<PAGE> 30
Securities of that series for redemption and ending at the close of business on
(A) if Securities of the series are issuable only as Registered Securities, the
day of the mailing of the relevant notice of redemption and (B) if Securities
of the series are issuable as Bearer Securities, the day of the first
publication of the relevant notice of redemption or, if Securities of the
series are also issuable as Registered Securities and there is no publication,
the mailing of the relevant notice of redemption, or (ii) to register the
transfer of or exchange any Registered Security so selected for redemption, in
whole or in part, except the unredeemed portion of any Registered Security
being redeemed in part, or (iii) to exchange any Bearer Security so selected
for redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, provided that such
Registered Security shall be simultaneously surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified as
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, or (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable and the transfer thereof so registrable.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clause (i) or (ii) of the preceding
sentence or such other conditions as may be specified, such Book-Entry Security
may be exchanged for Securities registered in the names of, and the transfer of
such Book-Entry Security may be registered to, such Persons (including Persons
other than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
204 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Book-Entry Security pursuant to the
preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a
INDENTURE
-24-
<PAGE> 31
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Security, pay such Security or coupon
(without surrender thereof except in the case of a mutilated Security or
coupon) provided, however, that the principal of and any premium and interest on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees, and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Security and coupons, if any, shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise so provided, at the option of
the Company and provided funds are on deposit with the Paying Agent, payment of
interest on any Registered Security may be made by check mailed on or before the
due date to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
INDENTURE
-25-
<PAGE> 32
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment, and at
the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this Clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and, unless
acceptable to the Trustee, not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at the address of such Holder as
it appears in the Security Register, not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be then listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307) any
interest on such Security and for all other purposes whatsoever, whether or not
such Security be
INDENTURE
-26-
<PAGE> 33
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee. All Registered Securities and matured coupons so
delivered shall be promptly canceled by the Trustee. All Bearer Securities and
unmatured coupons so delivered shall be held by the Trustee and, upon
instruction by a Company Order, shall be canceled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly 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 and coupons held by the Trustee shall be disposed of in accordance
with its customary practice.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
INDENTURE
-27-
<PAGE> 34
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for, and any right to receive
additional amounts, as provided in Section 1004), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
306, (iii) coupons appertaining to Securities called for redemption
and maturing after the relevant Redemption Date, whose surrender has
been waived as provided in Section 1106, and (iv) Securities and
coupons for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 1003) have been delivered to the Trustee for cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and any interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
INDENTURE
-28-
<PAGE> 35
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section,
the obligations of the Trustee under Section 402 and the last paragraph of
Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by any subordination provisions applicable to the Securities or by
operation of law or pursuant to any judgment, decree or order, rule or
regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series of Securities or it is specifically deleted
or modified in or pursuant to the terms of such series or in the form of
Security of such series:
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
INDENTURE
-29-
<PAGE> 36
(4) default in the performance, or breach, of any
covenant of the Company in this Indenture (other than a covenant a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Code, commences a voluntary case, consents to the entry of
an order for relief against it in an involuntary case, consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Code that remains unstayed and in effect
for 60 days and that is for relief against the Company as debtor in an
involuntary case, appoints a Custodian of the Company or a Custodian
for all or substantially all of the property of the Company, or orders
the liquidation of the Company; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Code.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that
INDENTURE
-30-
<PAGE> 37
series to be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by Holders), and upon any such declaration such
principal amount (or specified amount) shall become immediately due and
payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for
INDENTURE
-31-
<PAGE> 38
principal and any premium and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
premium and on any overdue interest, at the rate or rates prescribed therefor
in such Securities and, 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
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons
INDENTURE
-32-
<PAGE> 39
or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities and coupons in respect of which such judgment
has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities or coupons, or both as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: Subject to any subordination provisions applicable to
the Securities, to the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities and
coupons in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities and
coupons for principal and any premium and interest, respectively.
In any case in which Securities are Outstanding that are denominated
in more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided
with respect to any series of Securities, the Trustee shall calculate the
amount of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section that is denominated in
a foreign currency, determine that amount in Dollars that would be obtained for
the amount owing such Holder, using the rate of exchange at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York Dollars with such amount owing; (ii) calculate the sum of all Dollar
amounts determined under (i) and add thereto any amounts due and payable in
Dollars; and (iii) using the individual amounts determined in (i) or any
individual amounts due and payable in Dollars, as the case may be, as a
numerator, and the sum calculated in (ii) as a denominator, calculate as to
each Holder of a Security to whom an amount is owed under this Section the
fraction of the amount collected under this Article payable to such Holder.
Any expenses incurred by the Trustee in actually converting amounts owing
Holders of Securities denominated in a currency other than that in which any
amount is collected under this Article shall be likewise (in accordance with
this paragraph) borne ratably by all Holders of Securities to whom amounts are
payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used
INDENTURE
-33-
<PAGE> 40
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day in the City of New York next preceding
that on which final judgment is given. Neither the Company nor the Trustee
shall be liable for any shortfall nor shall it benefit from any windfall in
payments to Holders of Securities under this Section caused by a change in
exchange rates between the time the amount of a judgment against the Company is
calculated as above and the time the Trustee converts the Judgment Currency
into the Required Currency to make payments under this Section to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by
the Company on the claim or claims underlying such judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of
that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of and any premium and
(subject to Sections 305 and 307) any interest on such Security or payment of
such coupon on the Stated Maturity or Maturities expressed in such Security or
coupon (or, in the case
INDENTURE
-34-
<PAGE> 41
of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
INDENTURE
-35-
<PAGE> 42
(3) the Trustee shall not be obligated to take any action
unduly prejudicial to Holders not joining in such direction or
involving the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to the Securities of
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of 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 to take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and 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.
INDENTURE
-36-
<PAGE> 43
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of (i) any default of the character
specified in Section 501(4) with respect to Securities of such series or (ii)
any default added to this Indenture pursuant to clause (17) of Section 301 for
the benefit of the Holders of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
INDENTURE
-37-
<PAGE> 44
(4) the Trustee may consult with counsel of its choice 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;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(8) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its grossly negligent
action, grossly negligent omission or its willful misconduct; and
(9) the Trustee shall not be charged with knowledge of any
event of Default under Section 501 (other than an Event of Default
under Section 501(1),(2) or (3) if the Trustee is also the Paying Agent
with respect to the Securities) hereof or the existence of any
Subsidiary of the Company unless the Trustee shall have received notice
thereof in accordance with Section 105 hereof from the Company or a
Holder.
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) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company 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.
INDENTURE
-38-
<PAGE> 45
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the benefit of the Holders of particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States 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, subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. No obligor upon
INDENTURE
-39-
<PAGE> 46
any Security issued under this Indenture or a Person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee under this Indenture.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or a public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
case, (i) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (ii) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall
INDENTURE
-40-
<PAGE> 47
comply with the applicable requirements of Section 611. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of
such series and accepted appointment in the manner required by Section 611, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, with like effect as
if originally named Trustee hereunder; but on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Any Trustee ceasing to act shall,
nevertheless, retain a prior lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each 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
INDENTURE
-41-
<PAGE> 48
the retiring Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee, and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
As soon as practicable, the successor Trustee shall mail a notice of its
succession to the Company and the Holders of all Outstanding Securities
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
INDENTURE
-42-
<PAGE> 49
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, by an instrument in writing, appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which may be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia (or, if Bearer Securities, organized and doing business
under the laws of the country in which the Bearer Securities are eligible),
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority (or, if Bearer Securities, an
authority of the country in which the Bearer Securities are eligible). If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible
shall, resign at any time by giving written notice thereof to the Trustee and
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect
INDENTURE
-43-
<PAGE> 50
as if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have been endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
"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"
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does not have an office capable
of authenticating Securities upon original issuance located in a Place of
Payment where the Company wishes to have Securities of such series
authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 102 and need not
be accompanied by an Opinion of Counsel), shall appoint in accordance with this
Section an Authenticating Agent (which, if so requested by the Company, shall
be such Affiliate of the Company) having an office in a Place of Payment
designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after a Regular Record
Date, a list, in such form as the Trustee may reasonably require, containing
all the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities as of the immediately preceding Regular Record Date, and
INDENTURE
-44-
<PAGE> 51
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701, and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of any of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
made pursuant to the Trust Indenture Act and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) On or before August 1 in each year following the date hereof,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
In addition to the certificates delivered to the Trustee pursuant to
Section 1007, the Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided, however,
that any such information, documents or reports required to be filed with the
Commission pursuant to
INDENTURE
-45-
<PAGE> 52
Section 13 or 15(d) of the Securities Exchange Act of 1934, shall be filed with
the Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of the
United States 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 any
premium and interest (including all additional amounts, if any,
payable pursuant to Section 1004) on all the Securities and the
performance or observance of every other covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons
and may liquidate and dissolve.
INDENTURE
-46-
<PAGE> 53
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities pursuant to Article Eight; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and 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; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change
INDENTURE
-47-
<PAGE> 54
any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements of Section
611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect to
matters or questions arising under this Indenture; provided, however,
that such action shall not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by 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 and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change the
Redemption Date thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 1004 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or change
the coin or currency in which any Security or any premium or interest
thereon is payable, or change any right of redemption, purchase or
repayment by the Company at the option of the Holder, or impair the
right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on
or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 1002, or
INDENTURE
-48-
<PAGE> 55
(4) modify any of the provisions of this Section, Section
513 or Section 1008 except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008 or
the deletion of this provision, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form
INDENTURE
-49-
<PAGE> 56
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 and of like tenor.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served
and where Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series pursuant
to Section 1004); provided, however, that if the Securities of that series are
listed on The International Stock Exchange of the United Kingdom and the
Republic of Ireland Limited, the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so
require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that series may
be surrendered for registration of transfer, where Securities
INDENTURE
-50-
<PAGE> 57
of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee and prompt notices to the Holders as provided in Section 106 of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect of any series of Securities or shall fail to furnish the Trustee
with the address thereof, such presentations and surrenders of Securities of
that series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any additional amounts payable on Bearer Securities of
that series pursuant to Section 1004) at any Paying Agent for such series
located outside the United States, and the Company hereby appoints the same as
its agents to receive such respective presentations, surrenders, notices and
demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that,
if the Securities of a series are denominated and payable in Dollars payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to so maintain an office or
agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
other change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or
INDENTURE
-51-
<PAGE> 58
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 to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Company or the Trustee) to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent
and (ii) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in
respect of the Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become due and payable
shall be paid to the Company on Company Request (unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
law), or (if then held by the Company) shall be discharged from such trust; and
the Holder of such Security or any coupon appertaining thereto shall (unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law) thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in an Authorized
Newspaper in each Place of Payment, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication, any unclaimed balance of such money then
remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were
INDENTURE
-52-
<PAGE> 59
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 1005. Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and
will not permit any of its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the
Securities of that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
SECTION 1006. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of the Trustee, will appoint, in the manner provided in Section 610, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 1007. Statement by Officer 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, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1007, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (i) Section 1005 with respect to the
Securities of any series or (ii) any covenant
INDENTURE
-53-
<PAGE> 60
of the Company added to this Indenture pursuant to clause (17) of Section 301
for the benefit of the Holders of such series, if before the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be
redeemed) the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Company or the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
by such method as the Company or the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of global Securities
of such series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Company or the Trustee, from
INDENTURE
-54-
<PAGE> 61
the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify
the other in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
45 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 of any Securities, the principal amounts) of the
particular Securities to be redeemed, and that on and after the
Redemption Date, upon surrender of the Securities, new Securities of
such series in principal amount equal to the unredeemed part thereof
will be issued,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is
the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
If any of the Securities to be redeemed is in the form of a Book-Entry
Security, then the Company shall modify the notice of redemption to the extent
necessary to accord with the procedures of the Depository applicable to
redemption.
INDENTURE
-55-
<PAGE> 62
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to 11:00 a.m. Eastern time on any Redemption Date, the
Company shall deposit with the Trustee by or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
INDENTURE
-56-
<PAGE> 63
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series and of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such Securities
or through the application of permitted optional sinking fund payments pursuant
to the terms of such Securities, in each case in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such Securities as provided for by
the terms of such series, provided that such Securities have not been
previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount
of such sinking fund payment shall be reduced accordingly.
INDENTURE
-57-
<PAGE> 64
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
If specified as contemplated pursuant to Section 301 to be applicable
with respect to Securities of a series, the Company may at its option by Board
Resolution, at any time, elect to have either Section 1302 or Section 1303
applied to the Outstanding Securities of any such series denominated and payable
in U.S. dollars upon compliance with the conditions set forth below in this
Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of any series on
the date the conditions set forth in Section 1304 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities of such series and to have satisfied all its other
obligations under the Securities of such series and this Indenture insofar as
the Securities of such series are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of the Securities of such series to
receive, solely from the trust fund described in Section 1304 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on the Securities of such series when such payments are
due, (B) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002, 1003 and 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Thirteen.
Subject to compliance with this Article Thirteen, the Company may exercise its
option under this Section 1302 notwithstanding the prior exercise of its option
under Section 1303.
INDENTURE
-58-
<PAGE> 65
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801 and
1005 and any covenant of the Company added to this Indenture pursuant to clause
(17) of Section 301 for the benefit of the Holders of securities of such series,
and (ii) the occurrence of an event specified in clause (4) of Section 501 (with
respect to Sections 801 and 1005 and any such covenant added to this Indenture)
shall not be deemed to be an Event of Default on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "covenant
defeasance"), but the remainder of this Indenture and such Securities shall be
unaffected thereby. For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, covenant or clause,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section, covenant or clause or by reason of any reference in any such
Section, covenant or clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient
(without consideration of the reinvestment to any such amounts and
after payment of all taxes or other charges or assessments in respect
thereof payable by the Trustee), in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and
premium, if any) and each installment of interest on the Securities and
any coupons pertaining thereto on the Stated Maturity of such principal
(and premium, if any) or installment of interest in accordance with the
terms of this Indenture and of the Securities of such series. For this
purpose, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of
which its full faith and credit is pledged or (y) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as custodian with respect to any such U.S.
Government Obligation or a specific payment of principal of or interest
on any such U.S.
INDENTURE
-59-
<PAGE> 66
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest within the meaning
of the Trust Indenture Act with respect to any securities of the
Company.
(6) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with and, in the case of such
Officers' Certificate, additionally stating that the deposit was not
made by the Company with the intent of
INDENTURE
-60-
<PAGE> 67
preferring the Holders of the Securities of such series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company or others.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Securities of such series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of the Securities of such series, of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
1305; provided, however, that if the Company makes any payment of principal of
or any premium or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
the Securities of such series to receive such payment from the money held by
the Trustee or the Paying Agent.
INDENTURE
-61-
<PAGE> 68
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall 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 106, not less than
21 nor more than 120 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1401, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London 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 a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in 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
INDENTURE
-62-
<PAGE> 69
shall, if convened at the request of Holders of Securities of such series, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1402(a), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of an adjourned meeting shall state expressly the percentage, as provided
above, of the principal amount of the Outstanding Securities of such series
which shall constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting
duly reconvened at which a quorum is present as aforesaid) may be adopted by
the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in 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 principal amount of the Outstanding Securities of that
series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series
INDENTURE
-63-
<PAGE> 70
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
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 or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
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 said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
-----------------------------------
INDENTURE
-64-
<PAGE> 71
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.
INDENTURE
-65-
<PAGE> 72
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY
By:
------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK
By:
------------------------------------
Name:
Title:
INDENTURE
-66-
<PAGE> 73
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
BENEFICIAL OWNER OF
INTEREST IN A TEMPORARY GLOBAL SECURITY
NEWFIELD EXPLORATION COMPANY
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that are
(A) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States person(s)
who acquired Securities through the foreign branches of the United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)), or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is
being delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further to certify that,
except as set forth below, the Securities are being exercised by and on behalf
EXHIBIT A
-1-
<PAGE> 74
of non-U.S. person(s). As used in this paragraph, the term "U.S. person" has
the meaning given to it by Regulation S under the Act.
As used herein, "United States" or "U.S." means the United States of
America (including the States and District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: _______________, 199__.
NAME OF PERSON MAKING CERTIFICATION
By:
------------------------------------
- --------------------
* To be dated no earlier than the Certification Date.
EXHIBIT A
-2-
<PAGE> 75
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE
EURO-CLEAR OPERATOR OR CEDEL S.A.
NEWFIELD EXPLORATION COMPANY
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of __________, 199__, between
Newfield Exploration Company and First Union National Bank, as of the date
hereof [ ] principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (A)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.16512(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States persons who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (A) or (B), each such United
States financial institution has agreed, on its own behalf or through its agent,
that it will comply with the requirements of Section 165(1)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.1635(c)(2)(i)(D)(7)), and to the further effect that the
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended,
then this is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or,
EXHIBIT B
-1-
<PAGE> 76
if relevant, exercise of any rights or collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, 199__.
(dated the Exchange Date or the Interest
Payment Date)
[Morgan Guaranty Trust Company of New
York, as operator of the Euro-clear
System]
or
[CEDEL S.A.]
By:
-------------------------------
EXHIBIT B
-2-
<PAGE> 1
EXHIBIT 4.6
================================================================================
NEWFIELD EXPLORATION COMPANY
TO
-----------------------------------
TRUSTEE
---------------
SUBORDINATED INDENTURE
Dated as of ____________, 199_
================================================================================
<PAGE> 2
NEWFIELD EXPLORATION COMPANY
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE DATED AS OF ____________, 199__
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
- ----------------- -----------------
<S> <C>
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
(b) .............................................................................. 702
(c) .............................................................................. 702
Section 313(a) .............................................................................. 703
(b) .............................................................................. 703
(c) .............................................................................. 703
(d) .............................................................................. 703
Section 314(a)(1)-(3) .............................................................................. 704, 1007
(a)(4) .............................................................................. 101
.............................................................................. 1004
(b) .............................................................................. Not applicable
(c)(1) .............................................................................. 102
(c)(2) .............................................................................. 102
(c)(3) .............................................................................. Not Applicable
(d) .............................................................................. Not Applicable
(e) .............................................................................. 102
Section 315(a) .............................................................................. 601
(b) .............................................................................. 602
(c) .............................................................................. 601
(d) .............................................................................. 601
(e) .............................................................................. 514
Section 316(a) .............................................................................. 101
(a)(1)(A) .............................................................................. 502
.............................................................................. 512
(a)(1)(B) .............................................................................. 513
(a)(2) .............................................................................. Not applicable
(b) .............................................................................. 508
(c) .............................................................................. 104
Section 317(a)(1) .............................................................................. 503
(a)(2) .............................................................................. 504
(b) .............................................................................. 1003
Section 318(a) .............................................................................. 108
</TABLE>
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
-a-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
RECITALS OF THE COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONS . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 105. Notices, Etc., to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 106. Notice to Holders of Securities; Waiver. . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 107. Language of Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 108. Conflict with Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 109. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 110. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 111. Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 112. Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 113. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 114. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 201. Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 202. Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . 15
SECTION 203. Securities in Global Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 204. Form of Legend for Book-Entry Securities . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . 19
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 305. Registration, Registration of Transfer and Exchange . . . . . . . . . . . . . . . . . 23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons . . . . . . . . . . . . . 26
SECTION 307. Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . 27
SECTION 308. Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
</TABLE>
-i-
<PAGE> 4
<TABLE>
<S> <C>
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 402. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 502. Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . 32
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 514. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE SIX
THE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 603. Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 604. Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . 40
SECTION 605. May Hold Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 606. Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 607. Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 608. Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 609. Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 610. Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . 41
SECTION 611. Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 613. Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . 44
SECTION 614. Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . 44
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
</TABLE>
-ii-
<PAGE> 5
<TABLE>
<S> <C>
SECTION 702. Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . 46
SECTION 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 704. Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . 47
SECTION 802. Successor Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE NINE
SUPPLEMENTAL INDENTURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 901. Supplemental Indentures without Consent of Holders . . . . . . . . . . . . . . . . . . 48
SECTION 902. Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . 49
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . . . . . . . . . . . . . 51
SECTION 907. Subordination Unimpaired . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE TEN
COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . 53
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 1005. Purchase of Securities by Company or Subsidiary . . . . . . . . . . . . . . . . . . . 55
SECTION 1006. Appointments to Fill Vacancies in Trustee's Office . . . . . . . . . . . . . . . . . 55
SECTION 1007. Statement by Officer as to Default . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1008. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1103. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE TWELVE
SINKING FUNDS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . . . . . . . . . . . . . 59
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . . . . . . . . . . . . . 60
</TABLE>
-iii-
<PAGE> 6
<TABLE>
<S> <C>
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance. . . . . . . . . . . . . 60
SECTION 1302. Defeasance and Discharge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 1303. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 1304. Conditions to Defeasance or Covenant Defeasance . . . . . . . . . . . . . . . . . . . 61
SECTION 1305. Deposited Money and U.S. Government Obligations to
Be Held in Trust; Other Miscellaneous Provisions . . . . . . . . . . . . . 63
SECTION 1306. Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1401. Purposes for Which Meetings May Be Called . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1402. Call, Notice and Place of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1403. Persons Entitled to Vote at Meetings . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1404. Quorum; Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings . . . . . . . . 65
SECTION 1406. Counting Votes and Recording Action of Meetings . . . . . . . . . . . . . . . . . . . 66
ARTICLE FIFTEEN
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1501. Applicability of Article. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 1502. Exercise of Conversion Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
SECTION 1503. Fractional Interests. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1504. Adjustment of Conversion Price. . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 1505. Continuation of Conversion Privilege in Case
of Merger, Consolidation or Sale of Assets. . . . . . . . . . . . . . . . 73
SECTION 1506. Notice of Certain Events. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 1507. Taxes on Conversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1508. Company to Provide Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
SECTION 1509. Disclaimer of Responsibility for Certain Matters. . . . . . . . . . . . . . . . . . . 75
SECTION 1510. Return of Funds Deposited for Redemption of Converted Securities. . . . . . . . . . . 76
ARTICLE SIXTEEN
SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
SECTION 1601. Securities Subordinated to Senior Indebtedness. . . . . . . . . . . . . . . . . . . . 76
SECTION 1602. Reliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior Indebtedness. . . . . . . . . . 79
SECTION 1603. Application by Trustee of Assets Deposited with It. . . . . . . . . . . . . . . . . . 79
SECTION 1604. Disputes with Holders of Certain Senior Indebtedness. . . . . . . . . . . . . . . . . . 79
SECTION 1605. Trustee Not Charged with Knowledge of Prohibition. . . . . . . . . . . . . . . . . . . 80
</TABLE>
-iv-
<PAGE> 7
<TABLE>
<S> <C>
SECTION 1606. Trustee to Effectuate Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . 80
SECTION 1607. Rights of Trustee as Holder of Senior Indebtedness. . . . . . . . . . . . . . . . . . 81
SECTION 1608. Article Applicable to Paying Agents. . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1609. Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness. . . . . . . . . . . . . 81
SECTION 1610. Trustee Not Fiduciary for Holders of Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
</TABLE>
-v-
<PAGE> 8
THIS SUBORDINATED INDENTURE, dated as of ___________, 199__, is between
NEWFIELD EXPLORATION COMPANY, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), having its
principal office at 363 N. Sam Houston Parkway E., Suite 2020, Houston, Texas
77060, and FIRST UNION NATIONAL BANK, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its subordinated
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of a series thereof,
as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles in the United States of America, 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 of America as of the
date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other
<PAGE> 9
subdivision, and the words "date of this Indenture" and "date hereof"
and other words of similar import refer to the effective date of the
original execution and delivery of this Indenture, viz. ___________,
199__.
"Act", when used with respect to any Holder of a Security, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"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.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United
States Code Sections 101 et seq., or any successor statute thereto.
"Bearer Security" means any Security in the form established pursuant
to Section 201 which is payable to bearer, including, without limitation, such a
Security in temporary or permanent global form.
"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.
-2-
<PAGE> 10
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Capitalized Lease Obligation" means rental obligations under a lease
that are required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations, as determined in accordance with generally accepted
accounting principles.
"Certification Date" means with respect to Securities of any series
(i), if Bearer Securities of such series are not to be initially represented by
a temporary global Security, the date of delivery of the definitive Bearer
Security and (ii), if Bearer Securities of such series are initially
represented by a temporary global Security, the earlier of (A) the Exchange
Date with respect to Securities of such series and (B), if the first Interest
Payment Date with respect to Securities of such series is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company as the same exists at the date of execution and delivery of this
Indenture or other capital stock of the Company into which such Common Stock is
converted, reclassified or changed from time to time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, a Vice Chairman
of the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Conversion Agent" means any Person authorized by the Company to
convert any Securities on behalf of the Company.
"Conversion Price" has the meaning specified in Section 1504.
-3-
<PAGE> 11
"Conversion Shares" has the meaning specified in Section 1504.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office shall be located at 230 South Tryon Street, Ninth Floor, Charlotte,
North Carolina 28288-1179 or such other address as the Trustee may give notice
thereof to the Company.
The term "corporation" means a corporation, association, limited
liability company, joint-stock company or business trust.
The term "coupon" means any interest coupon appertaining to a Bearer
Security.
"Date of Conversion" has the meaning set forth in Section 1502.
"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, specified for that purpose as contemplated by Section 301.
"Disqualified Capital Stock" means (a) except as set forth in (b),
with respect to any Person, Capital Stock of such Person that, by its terms or
by the terms of any security into which it is convertible, exercisable or
exchangeable, is, or upon the happening of an event or the passage of time
would be, required to be redeemed or repurchased (including at the option of
the holder thereof) by such Person or any of its Subsidiaries, in whole or in
part, on or prior to the latest Stated Maturity of the principal of any
Outstanding Securities and (b) with respect to any Subsidiary of such Person
(including with respect to any Subsidiary of the Company), any Capital Stock
other than any common stock with no preference, privileges, or redemption or
repayment provisions.
"Distribution Date" has the meaning specified in Section 1504.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Euro-clear" means the operator of the Euro-clear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Date" has the meaning specified in Section 304.
"Expiration Time" has the meaning specified in Section 1504.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the Security is registered in
the Security Register and in the case of a Bearer Security the bearer thereof
and, when used with respect to any coupon, means the bearer thereof.
-4-
<PAGE> 12
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities and obligations, contingent or otherwise, of any 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) representing the balance deferred and unpaid of the purchase price of any
property or services, except such as would constitute trade payables to trade
creditors in the ordinary course of business that are not more than 90 days past
due, (iv) evidenced by bankers' acceptances or similar instruments issued or
accepted by banks, (v) for the payment of money relating to a Capitalized Lease
Obligation, or (vi) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit; (b) all net
obligations of such Person under Interest Swap and Hedging Obligations; (c) all
liabilities of others of the kind described in the preceding clause (a) or (b)
that such Person has guaranteed or that is otherwise its legal liability (other
than endorsements in the ordinary course of business) and all obligations to
purchase, redeem or acquire any Capital Stock; and (d) any and all deferrals,
renewals, extensions, refinancings, refundings (whether direct or indirect) of
any liability of the kind described in any of the preceding clause (a), (b) or
(c), or this clause (d), 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.
The term "interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
Person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such Person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"Junior Security" of any Person means any Qualified Capital Stock and
any Indebtedness of such Person that is subordinated in right of payment to the
Securities of each series then Outstanding and has no scheduled installment of
principal due, by redemption, sinking fund payment or otherwise, on or prior to
the latest Stated Maturity of the principal of any Outstanding Securities.
"Last Sale Price" has the meaning specified in Section 1503.
-5-
<PAGE> 13
"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.
The term "non-electing shares" has the meaning specified in Section
1505.
"Offer" has the meaning specified in Section 1504.
"Officers' Certificate" means a certificate complying with the
provisions of Section 102 signed by the Chairman of the Board, Vice Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel for the
Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount payable upon the Stated Maturity
thereof to be due and payable upon redemption thereof or upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities converted into Common Stock pursuant
hereto and, for purposes of selection for redemption, Securities not
deemed Outstanding pursuant to Section 1103.
-6-
<PAGE> 14
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 shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in a foreign currency or currencies, including composite
currencies, shall be the Dollar equivalent, determined on the date of original
issuance of such Security in the manner provided as contemplated by Section
301, of the principal amount (or, in the case of an Original Issue Discount
Security, the Dollar equivalent on the date of original issuance of such
Security of the amount determined as provided in (i) above) of such Security,
and (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 authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Payment Blockage Period" has the meaning specified in Section 1601.
"Payment Default" has the meaning specified in Section 1601.
"Payment Notice" has the meaning specified in Section 1601.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places as specified in accordance with Section 301
where, subject to the provisions of Section 1002, the principal of and any
premium and interest on the Securities of that series are payable.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Purchased Shares" has the meaning specified in Section 1504.
-7-
<PAGE> 15
"Qualified Capital Stock" means any Capital Stock of the Company that
is not Disqualified Capital Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of such Security and 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 the terms of
such Security and this Indenture.
"Registered Security" means any Security in the form established
pursuant to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, shall
mean any officer in the corporate trust department (or any successor group) of
the Trustee, including any Vice President, any Trust Officer, or any other
officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred at the Corporate Trust Office
because of his or her knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means Indebtedness of the Company, whether
outstanding on the date of this Indenture or thereafter created, incurred,
assumed, guaranteed or in effect guaranteed by the Company, unless the
instrument creating or evidencing such Indebtedness provides that such
Indebtedness is not senior or superior, in right of payment, to the Securities
or to other Indebtedness which is pari passu with, or subordinated to, the
Securities; provided, however, that in no event shall Senior Indebtedness
include (a) Indebtedness of the Company owed or owing to any Subsidiary of the
Company or any officer, director or employee of the Company or any Subsidiary of
the Company except in respect of deferred compensation in an aggregate amount
not to exceed $10,000,000 at any one time, (b) Indebtedness to trade creditors,
(c) any liability for taxes owed or owing by the Company and (d) the Securities.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such
-8-
<PAGE> 16
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" with respect to any Person means (i) a corporation a
majority of whose Capital Stock with voting power normally entitled to vote in
the election of directors is at the time, directly or indirectly, owned by such
Person, by such Person and one or more Subsidiaries of such Person or by one or
more Subsidiaries of such Person, (ii) a partnership in which such Person or a
Subsidiary of such Person is, at the time, a general partner and owns alone or
together with one or more Subsidiaries of such Person a majority of the
partnership interests, or (iii) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries of such Person, or such Person and
one or more Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has at least majority ownership interest.
"Trading Day" has the meaning specified in Section 1503.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
and if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed, except as provided in
Section 905; provided, however, that in the event the Trust Indenture Act of
l939 is amended after such date, "Trust Indenture Act" means, to the extent
required by any such amendment, the Trust Indenture Act of 1939 as so amended.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given
-9-
<PAGE> 17
in the form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of such series may, alternatively, be embodied in and evidenced by the
record of Holders of Securities of such series voting in favor thereof, either
in person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fourteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments or record or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at
any such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made
-10-
<PAGE> 18
in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 1406.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining
the Holders of Registered Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action, or to vote on any action, authorized or permitted to be given or taken
by Holders of Securities of such series. If not set by the Company prior to
the first solicitation of a Holder of Securities of such series made by any
Person in respect of any such action, or, in the case of any such vote, prior
to such vote, the record date for any such action or vote shall be the 30th day
(or, if later, the date of the most recent list of Holders required to be
provided pursuant to Section 701) prior to such first solicitation or vote, as
the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled
to give or take, or vote on, the relevant action.
(d) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be
proved by the Security Register.
(e) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such Person had on
deposit with such depositary, or exhibited to it, the Bearer Securities therein
described; or such facts may be proved by the certificate or affidavit of the
Person holding such Bearer Securities, if such certificate or affidavit is
deemed by the Trustee to be satisfactory. The Trustee and the Company may
assume that such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to the
Trustee by some other Person, or (3) such Bearer Security is surrendered in
exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may also be proved in any
other manner which the Trustee deems sufficient.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu
-11-
<PAGE> 19
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.
(g) Without limiting the foregoing, a Holder entitled hereunder to
give or take any action hereunder with regard to any particular Security may do
so with regard to all or any part of the principal amount of such Security or
by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any different part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, 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 Indenture,
to the attention of its Treasurer, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in
such Securities on a Business Day at least twice, the first such
publication to be not earlier than the earliest date, and not later
than the latest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Registered Securities by mail, then such notification as shall be
made with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. In any case where notice to Holders
of Registered Securities is given by mail, neither the failure to mail such
notice, nor any defect in any notice so
-12-
<PAGE> 20
mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein.
In case by the reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause
it shall be impracticable to publish any notice to Holders of Bearer Securities
as provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of any
notice to Holders of Registered Securities given as provided herein.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 107. Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
SECTION 108. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded, as the
case may be.
SECTION 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
-13-
<PAGE> 21
SECTION 111. Separability Clause.
In case any provision in this Indenture or the Securities or coupons
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder, the holders of Senior Indebtedness and the Holders of
Securities and coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 113. Governing Law.
This Indenture and the Securities and coupons 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 or the last date for conversion of any Security shall
not be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Securities or coupons other than a
provision in the Securities of any series which specifically states that such
provision shall apply in lieu of this Section) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date
and such conversion 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, or on the last date for conversion, as the
case may be, provided that no interest shall accrue on the amount so payable
for the period from and after such date.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons shall be in
substantially the form (including temporary or permanent global form) as shall
be established by or pursuant to a Board Resolution 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 law, or with the rules of any securities exchange or to
conform to general usage, all as may, consistently herewith, be determined by
the officers executing such Securities or coupons, as evidenced by their
execution of the Securities or coupons. If temporary Securities of any series
are issued in global form as permitted by Section 304, the form thereof shall
-14-
<PAGE> 22
be established as provided in the preceding sentence. A copy of the Board
Resolution establishing the forms of Securities or coupons of any series (or
any such temporary global Security) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security) or coupons.
Unless otherwise specified as contemplated by Section 301, Securities
in bearer form shall have interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
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 specified as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may be reduced to reflect exchanges or
redemptions. Any endorsement of a Security in global form to reflect the
amount, or any increase or decrease in the amount, of Outstanding Securities
represented thereby shall be made by the Trustee in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304. Subject to the provisions of Section 303 and, if applicable,
Section 304, the Trustee shall deliver and redeliver any Security in permanent
global form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
-15-
<PAGE> 23
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of and
any premium and interest on any Security in permanent global form shall be made
to the Person or Persons specified therein.
SECTION 204. Form of Legend for Book-Entry Securities.
Any Book-Entry Security authenticated and delivered hereunder shall
bear a legend in substantially the following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of a Depository
or a nominee of a Depository. This Security is exchangeable for Securities
registered in the name of a Person other than the Depository or its nominee
only in the limited circumstances described in the Indenture, and no transfer
of this Security (other than a transfer of this Security as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository) may be registered except
in such limited circumstances."
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series, and each such
series shall rank equally and pari passu with each other series as to right of
payment of principal and any premium and interest thereon, but all Securities
issued hereunder shall be subordinate and junior in right of payment, to the
extent and in the manner set forth in Article Sixteen, to all Senior
Indebtedness. There shall be established in or pursuant to a Board Resolution
and, subject to Section 303, set forth, or determined in the manner provided,
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from 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,
-16-
<PAGE> 24
other Securities of the series pursuant to Section 304, 305, 306, 906
or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable
as Registered Securities, Bearer Securities or both, whether any
Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be
issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global
Security may exchange such interests for Securities of such series and
of like tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other than
in the manner provided in Section 305;
(4) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature and the extent to which,
or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of the
Securities of the series is payable;
(6) the rate or rates at which the Securities of the
series shall bear interest, if any, or the method by which such rate
or rates shall be determined, the date or dates from which any such
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable, and the Regular Record Date for any
interest payable on any Registered Securities on any Interest Payment
Date and whether, and under what circumstances, additional amounts
with respect to such Securities shall be payable as set forth in
Section 1004;
(7) the place or places where, subject to the provisions
of Section 1002, the principal of and any premium and interest on
Securities of the series shall be payable, any Registered Securities
of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange or conversion
and notices and demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(8) the right, if any, of the Company to redeem
Securities of the series, in whole or in part, at its option and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series may be so
redeemed;
(9) the obligation, if any, of the Company to redeem,
purchase, or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices
-17-
<PAGE> 25
at which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(10) the denominations in which any Registered Securities
of the series shall be issuable, if other than denominations of $1,000
and any integral multiple thereof, and the denomination or
denominations in which any Bearer Securities of the series shall be
issuable, if other than the denomination of $5,000;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on any Securities of the series shall be payable if other
than the currency of the United States of America and the manner of
determining the equivalent thereof in the currency of the United
States of America for purposes of the definition of "Outstanding" in
Section 101;
(12) if the amount of payments of principal of and any
premium or interest on any Securities of the series may be determined
with reference to an index, the manner in which such amounts shall be
determined;
(13) if other than the principal amount thereof, the
portion of the principal amount of any Securities of the series which
shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 502;
(14) if the principal of and any premium or interest on
the Securities of the series are to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies, including
composite currencies, other than that or those in which the Securities
are stated to be payable, the currency or currencies in which payment
of the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(15) whether the Securities of the series shall be issued
upon original issuance in whole or in part in the form of one or more
Book-Entry Securities and, in such case, (a) the Depository with
respect to such Book-Entry Security or Securities; and (b) the
circumstances under which any such Book-Entry Security may be
exchanged for Securities registered in the name of, and any transfer
of such Book-Entry Security may be registered to, a Person other than
such Depository or its nominee, if other than as set forth in Section
305;
(16) if either or both of the provisions of Section 1302
or 1303 are applicable to the Securities of such series and any
additional means of discharge pursuant to Section 1302 or 1303 and any
additional conditions to the provisions of Section 1302 or 1303;
(17) any deletions from, modifications of or additions to
any Events of Default or covenants with respect to the Securities of
such series;
(18) whether the Securities of the series will be
convertible into Common Stock (or cash in lieu thereof) and, if so,
the terms and conditions upon which such conversion will
-18-
<PAGE> 26
be effected including the initial Conversion Price and any adjustments
thereto in addition to or different from those set forth in Section
1504, the conversion period and other provisions in addition to or in
lieu of those set forth herein;
(19) any subordination provisions with respect to the
Securities of such series in addition to or in lieu of those set forth
in Article Sixteen hereof; and
(20) any other terms of the series (which terms shall not
be inconsistent with the provisions of this Indenture except as
permitted by Section 901(5)).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to the Board Resolution referred to above
and (subject to Section 303) set forth, or determined in the manner provided,
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, any Registered Securities of a series shall be
issuable in denominations of $1,000 and any integral multiple thereof and any
Bearer Securities of a series shall be issuable in the denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, a Vice Chairman of the Board, its President, its
Treasurer or its Chief Financial Officer, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or
facsimile. Coupons shall bear the facsimile signature of the Treasurer or any
Assistant Treasurer of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupons appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
unless otherwise
-19-
<PAGE> 27
provided with respect to such series, in connection with its original issuance,
no Bearer Security shall be mailed or otherwise delivered to any location in
the United States; and provided, further, that, unless otherwise provided with
respect to such series, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A
to this Indenture, dated no earlier than the Certification Date. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and canceled.
In authenticating Securities, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating:
(a) that the forms of such Securities and coupons
established by or pursuant to a Board Resolution as contemplated by
Section 201 have been established in conformity with the provisions of
this Indenture;
(b) if the terms of such Securities and any coupons have
been established by or pursuant to a 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, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
Such Opinion of Counsel shall also cover such other matters as the Trustee may
reasonably request.
The Trustee shall not be required to authenticate such Securities the
forms or terms of which have been established by or pursuant to a Board
Resolution if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
Notwithstanding the provisions of Section 301 and of the two preceding
paragraphs, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraphs at or prior to
the time of authentication of each Security of such series if such documents
are delivered at or prior to the authentication upon issuance of the first
Security of such series to be issued.
-20-
<PAGE> 28
After the original issuance of the first Security of such series to be
issued, any separate request by the Company that the Trustee authenticate
Securities of such series for original issuance will be deemed to be a
certification by the Company (which, subject to Section 601, the Trustee shall
be fully protected in relying on) that it is in compliance with all conditions
precedent provided for in this Indenture relating to the authentication and
delivery of such Securities.
Each Registered Security shall be dated the date of its
authentication; and each Bearer Security shall be dated as of the date of
original issuance of the first Security of such series to be issued.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate
of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309 together with a written
statement (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be
deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued, in registered
form or, if authorized, in bearer form with one or more coupons or without
coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities. In the case of any series
issuable as Bearer Securities, such temporary Securities may be in global form.
A temporary Bearer Security shall be delivered only in compliance with the
conditions set forth in Section 303.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company maintained pursuant to Section 1002 in a Place
of Payment for such series for the purpose of exchanges of Securities of such
series without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities of any series (accompanied by any unmatured
coupons appertaining thereto) the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like aggregate principal amount
of definitive Securities of the same series and of like tenor
-21-
<PAGE> 29
of authorized denominations; provided, however, that no definitive Bearer
Security shall be issued in exchange for a temporary Registered Security.
If temporary Securities of any series are issued in global form, any
such temporary global Security shall, unless otherwise provided therein, be
delivered to the London office of a depositary or common depositary (the
"Common Depositary"), for the benefit of Euro-clear and CEDEL S.A., for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security of a series (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities of that series in aggregate principal amount
equal to the principal amount of such temporary global Security, executed by
the Company. On or after the Exchange Date such temporary global Security
shall be surrendered by the Common Depositary to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in part,
for definitive Securities of that series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such temporary global Security to be exchanged; provided, however, that, unless
otherwise specified in such temporary global Security, upon such presentation
by the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euro-clear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL S.A. as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit B to this Indenture. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and if any combination thereof is so specified, as requested by
the beneficial owner thereof; provided, however, that no definitive Bearer
Security or permanent global Security shall be delivered in exchange for a
temporary Bearer Security except in compliance with the conditions set forth in
Section 303.
Unless otherwise specified in the temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged on the Exchange Date for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like
tenor unless, on or prior to the Exchange Date, such beneficial owner has not
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euro-clear and CEDEL S.A., the Trustee, any Authenticating Agent
appointed for such series of Securities and each Paying Agent and after the
Exchange Date, the interest of a beneficial owner of Securities of a series in
a temporary global Security shall be exchanged for definitive Securities (and
where the form of the definitive Securities is not specified by the Holder for
an interest in a permanent global Security) of the same series and of like
tenor following such beneficial owner's delivery to Euro-clear or CEDEL S.A.,
as the case may be, of a certificate in the form set forth in Exhibit A to this
Indenture dated no earlier than the Certification Date. Unless otherwise
specified in such temporary global
-22-
<PAGE> 30
Security, any exchange shall be made free of charge to the beneficial owners of
such temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like in the event that such Person does not take delivery of such definitive
Securities in person at the offices of Euro-clear or CEDEL S.A. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of such series shall
be payable to Euro-clear and CEDEL S.A. on such Interest Payment Date upon
delivery by Euro-clear and CEDEL S.A. to the Trustee of a certificate or
certificates in the form set forth in Exhibit B to this Indenture, for credit
without further interest on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euro-clear or CEDEL S.A., as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture. Any interest so received by
Euro-clear and CEDEL S.A. and not paid as herein provided shall be returned to
the Trustee immediately prior to the expiration of two years after such
Interest Payment Date in order to be repaid to the Company in accordance with
Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 1002 a register (being the
combined register of the Security Registrar and all transfer agents designated
pursuant to Section 1002 for the purpose of registration of transfer of
Securities and sometimes collectively referred to as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of each series of Registered
Securities and the registration of transfers of such Registered Securities.
The Trustee shall serve initially as "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained pursuant to
Section 1002 for such purpose in a Place of Payment for such series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Registered
Securities of the same series of any authorized denominations and of a like
aggregate principal amount and tenor.
At the option of the Holder, Registered Securities of any series may
be exchanged for other Registered Securities of the same series of any
authorized denominations and of a like aggregate principal amount and tenor,
upon surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is
-23-
<PAGE> 31
entitled to receive. Unless otherwise provided with respect to any series of
Securities, Bearer Securities may not be issued in exchange for Registered
Securities.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such
unmatured coupon or coupons or matured coupon or coupons in default, such
exchange may be effected if the Bearer Securities are accompanied by payment in
funds acceptable to the Company in an amount equal to the face amount of such
missing coupon or coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
any Paying Agent any such missing coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by coupons shall be payable only upon presentation
and surrender of those coupons at an office or agency located outside the
United States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such office or agency in exchange for a Registered
Security of the same series and like tenor after the close of business at such
office or agency on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If the beneficial owners of
interests in a permanent global Security are entitled to exchange such
interests for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301, then without unnecessary delay but in any event not later than the
earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities of that series in an aggregate
principal amount equal to the principal amount of such permanent global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered from time to time in accordance with instructions given to the
Trustee and the Common Depositary (which instructions shall be in writing but
need not comply with Section 102 or be accompanied by an Opinion of Counsel) by
the Common Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the
-24-
<PAGE> 32
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged which, unless the Securities of
the series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 301, shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; provided, however, that no
such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities of that series for redemption and
ending on the relevant Redemption Date; and provided, further, that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such permanent global Security
shall be returned by the Trustee to the Common Depositary or such other
depositary referred to above in accordance with the instructions of the Company
referred to above. If a Registered Security is issued in exchange for any
portion of such permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be, will
not be payable on such Interest Payment Date or proposed date for payment, as
the case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar or any
transfer agent duly executed, by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the
opening of business 15 days before any selection of Securities of that series
for redemption and ending at the close of business on (A) if Securities of the
series are issuable only as Registered Securities, the day of the mailing of
the relevant notice of redemption and (B) if Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Securities of the series are also issuable as
-25-
<PAGE> 33
Registered Securities and there is no publication, the mailing of the relevant
notice of redemption, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption, in whole or in part, except the
unredeemed portion of any Registered Security being redeemed in part, or (iii)
to exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption.
Notwithstanding the foregoing and except as otherwise specified as
contemplated by Section 301, any Book-Entry Security shall be exchangeable
pursuant to this Section 305 or Sections 304, 906 and 1107 for Securities
registered in the name of, and a transfer of a Book-Entry Security of any
series may be registered to, any Person other than the Depository for such
Security or its nominee only if (i) such Depository notifies the Company that
it is unwilling or unable to continue as Depository for such Book-Entry
Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934 or (ii) the Company
executes and delivers to the Trustee a Company Order that such Book-Entry
Security shall be so exchangeable and the transfer thereof so registrable.
Upon the occurrence in respect of any Book-Entry Security of any series of any
one or more of the conditions specified in clause (i) or (ii) of the preceding
sentence or such other conditions as may be specified, such Book-Entry Security
may be exchanged for Securities registered in the names of, and the transfer of
such Book-Entry Security may be registered to, such Persons (including Persons
other than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, any Book-Entry Security shall
also be a Book-Entry Security and shall bear the legend specified in Section
204 except for any Security authenticated and delivered in exchange for, or
upon registration of transfer of, a Book-Entry Security pursuant to the
preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining thereto is surrendered to the Trustee, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and of like tenor and principal amount and bearing
a number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
-26-
<PAGE> 34
In case any such mutilated, destroyed, lost or stolen Security or
coupon has become or is about to become due and payable or is being surrendered
for conversion in full, the Company in its discretion may, instead of issuing a
new Security, pay such Security or coupon or authorize the conversion thereof
(without surrender thereof except in the case of a mutilated Security or
coupon); provided, however, that the principal of and any premium and interest
on Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company
may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including the fees, and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and any such new Security and coupons, if any, shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement, payment or conversion of mutilated, destroyed, lost or stolen
Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest. Unless otherwise so provided, at the option of
the Company and provided funds are on deposit with the Paying Agent, payment of
interest on any Registered Security may be made by check mailed on or before the
due date to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at
its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to
-27-
<PAGE> 35
be paid on each Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and, unless acceptable to the Trustee,
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at the address of such Holder as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Registered Securities of any series in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Securities may be then listed, and upon such
notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered as
the owner of such Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307) any
interest on such 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.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of
any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
-28-
<PAGE> 36
whether or not such Security or coupon be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Notwithstanding the foregoing, with respect to any Book-Entry
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Book-Entry Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Book-Entry Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer, conversion or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee. All Registered Securities and matured
coupons so delivered shall be promptly canceled by the Trustee. All Bearer
Securities and unmatured coupons so delivered shall be held by the Trustee and,
upon instruction by a Company Order, shall be canceled or held for reissuance.
Bearer Securities and unmatured coupons held for reissuance may be reissued
only in replacement of mutilated, lost, stolen or destroyed Bearer Securities
of the same series and like tenor or the related coupons pursuant to Section
306. All Bearer Securities and unmatured coupons held by the Trustee pending
such cancellation or reissuance shall be deemed to be delivered for all
purposes of this Indenture and the Securities. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly 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 and coupons held by the Trustee shall be disposed of in accordance
with its customary practice.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for, and any right to receive
additional amounts, as provided in Section 1004), and the Trustee, at the
-29-
<PAGE> 37
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than
(i) coupons appertaining to Bearer Securities surrendered for exchange
for Registered Securities and maturing after such exchange, whose
surrender is not required or has been waived as provided in Section
305, (ii) Securities and coupons which have been destroyed, lost or
stolen and which have been replaced, converted or paid as provided in
Section 306, (iii) coupons appertaining to Securities called for
redemption and maturing after the relevant Redemption Date, whose
surrender has been waived as provided in Section 1106, and (iv)
Securities and coupons for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company;
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities and coupons not theretofore
delivered to the Trustee for cancellation, for principal (and premium,
if any) and any interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to clause
-30-
<PAGE> 38
(1)(B) of this Section, the obligations of the Trustee under Section 402 and
the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, the
coupons and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and
any premium and interest for whose payment such money has been deposited.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by the provisions of Article Sixteen hereof or by operation of law or
pursuant to any judgment, decree or order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series of Securities or it is specifically deleted or modified in or
pursuant to the terms of such series or in the form of Security of such series:
(1) default in the payment of any interest upon any
Security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment,
when and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any
covenant of the Company in this Indenture (other than a covenant a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Code, commences a voluntary case, consents to the entry of
an order for relief against it in an involuntary case, consents to the
appointment of a Custodian of it or for all or substantially all of its
property, or makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Code that remains unstayed and in effect
for 60 days and that is for relief against the Company as debtor in an
involuntary case, appoints a Custodian of the Company or a Custodian
for all or substantially all of the property of the Company, or orders
the liquidation of the Company. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Code.
-31-
<PAGE> 39
(7) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms
thereof) of all of the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Securities of
that series,
-32-
<PAGE> 40
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise
than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of
that series, other than the non-payment of the principal of Securities
of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of
(or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable
on such Securities and coupons for principal and any premium and interest and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and premium and on any overdue interest, at
the rate or rates prescribed therefor in such Securities 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
-33-
<PAGE> 41
of Securities of such series and any related coupons by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant
or agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, subject to Article Sixteen hereof, the Trustee
shall be authorized to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of Holders, vote for the election of a
trustee of bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any
premium or interest, upon presentation of the Securities or coupons, or both as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
-34-
<PAGE> 42
SECOND: Subject to Article Sixteen hereof, to the payment of
the amounts then due and unpaid for principal of and any premium and
interest on the Securities and coupons in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities and coupons for principal and any premium
and interest, respectively.
In any case in which Securities are Outstanding that are denominated
in more than one currency and the Trustee is directed to make ratable payments
under this Section to Holders of such Securities, unless otherwise provided
with respect to any series of Securities, the Trustee shall calculate the
amount of such payments as follows: (i) as of the day the Trustee collects an
amount under this Article, the Trustee shall, as to each Holder of a Security
to whom an amount is due and payable under this Section that is denominated in
a foreign currency, determine that amount in Dollars that would be obtained for
the amount owing such Holder, using the rate of exchange at which in accordance
with normal banking procedures the Trustee could purchase in The City of New
York Dollars with such amount owing; (ii) calculate the sum of all Dollar
amounts determined under (i) and add thereto any amounts due and payable in
Dollars; and (iii) using the individual amounts determined in (i) or any
individual amounts due and payable in Dollars, as the case may be, as a
numerator, and the sum calculated in (ii) as a denominator, calculate as to
each Holder of a Security to whom an amount is owed under this Section the
fraction of the amount collected under this Article payable to such Holder.
Any expenses incurred by the Trustee in actually converting amounts owing
Holders of Securities denominated in a currency other than that in which any
amount is collected under this Article shall be likewise (in accordance with
this paragraph) borne ratably by all Holders of Securities to whom amounts are
payable under this Section.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of, or premium, if any, or
interest on, the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the Business Day in the City of
New York next preceding that on which final judgment is given. Neither the
Company nor the Trustee shall be liable for any shortfall nor shall it benefit
from any windfall in payments to Holders of Securities under this Section
caused by a change in exchange rates between the time the amount of a judgment
against the Company is calculated as above and the time the Trustee converts
the Judgment Currency into the Required Currency to make payments under this
Section to Holders of Securities, but payment of such judgment shall discharge
all amounts owed by the Company on the claim or claims underlying such
judgment.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such Holder has previously given written notice to
the Trustee of a continuing Event of Default with respect to the
Securities of that series;
-35-
<PAGE> 43
(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 such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture (but subject to
Article Sixteen hereof), the Holder of any Security or coupon shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Sections 305 and 307) any interest on such
Security or payment of such coupon on the Stated Maturity or Maturities
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and, if applicable, to convert such Security as provided in
Article Fifteen and to institute suit for the enforcement of any such payment
or conversion right, and such rights shall not be impaired without the consent
of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities and coupons shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons
-36-
<PAGE> 44
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders of Securities or coupons may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture;
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction; and
(3) the Trustee shall not be obligated to take any action
unduly prejudicial to Holders not joining in such direction or
involving the Trustee in personal liability.
SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to the Securities of
such series and its consequences, except a default
(1) in the payment of the principal of or any premium or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the consent
of the Holder of each Outstanding Security of such series affected.
-37-
<PAGE> 45
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit
to file an undertaking to pay the costs of such suit, and may assess costs
against any such party litigant, in the manner and to the extent provided in
the Trust Indenture Act; provided, however, that neither this Section nor the
Trust Indenture Act shall be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the
Company.
SECTION 515. Waiver of 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 to take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of (i) any default of the character
specified in Section 501(4) with respect to Securities of such series or (ii)
any default added to this Indenture pursuant to clause (17) of Section 301 for
the benefit of the Holders of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this
-38-
<PAGE> 46
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities of
such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be
sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(4) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its grossly negligent
action, grossly negligent omission or its willful misconduct; and
(9) the Trustee shall not be charged with knowledge of
any Event of Default under Section 501 (other than an Event of Default
under Section 501(1), (2) or (3) if the Trustee is also the Paying
Agent with respect to the Securities) hereof or the existence of any
Subsidiary of the Company unless the Trustee shall have received notice
thereof in accordance with Section 105 hereof from the Company or a
holder.
-39-
<PAGE> 47
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) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and,
subject to Sections 608 and 613, may otherwise deal with the Company 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 and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or
made by the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
bad faith; and
(3) to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
-40-
<PAGE> 48
The obligations of the Company under this Section shall not be
subordinated to the payment of Senior Indebtedness pursuant to Article Sixteen
hereof, and as security for the performance of such obligations, the Trustee
shall have a lien prior to the Securities upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the Holders of particular Securities.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States 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, subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article. No obligor upon any
Security issued under this Indenture or a Person directly or indirectly
controlling, controlled by or under common control with such obligor shall
serve as Trustee under this Indenture.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
-41-
<PAGE> 49
(1) the Trustee shall fail to comply with Section 608
after written request therefor by the Company or by any Holder of a
Security who has been a bona fide Holder of a Security for at least
six months, or
(2) the Trustee shall cease to be eligible under Section
609 and shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or a public officer shall take charge
or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
case, (i) the Company by a Board Resolution may remove the Trustee
with respect to all Securities, or (ii) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of the Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or
more or all series and that at any time there shall be only one Trustee with
respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders of Securities of
such series and accepted appointment in the manner required by Section 611, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series. Such court may thereupon, after such notice, if any, as it may deem
proper, appoint a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided in Section 106. Each notice shall include the name of
the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.
-42-
<PAGE> 50
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee, with like effect as
if originally named Trustee hereunder; but on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Any Trustee ceasing to act shall,
nevertheless, retain a prior lien upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 607.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor Trustee
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of the
Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
-43-
<PAGE> 51
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.
As soon as practicable, the successor Trustee shall mail a notice of its
succession to the Company and the Holders of all Outstanding Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, by an instrument in writing, appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which may be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia (or, if Bearer Securities, organized and doing business
under the laws of the country in which the Bearer Securities are eligible),
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authority (or, if Bearer Securities, an
authority of the country in which the Bearer Securities are eligible). If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
-44-
<PAGE> 52
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or such Authenticating Agent.
An Authenticating Agent may, and if it shall cease to be eligible
shall, resign at any time by giving written notice thereof to the Trustee and
to the Company. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating
Agent and to the Company. Upon receiving such notice of resignation or upon
such termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall mail written notice of such appointment by first-class mail,
postage prepaid, to all Holders of Registered Securities, if any, of the series
with respect to which such Authenticating Agent will serve, as their names and
addresses appear in the Security Register. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers, and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payment, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have been endorsed thereon,
in addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
"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."
If all the Securities of a series may not be originally issued at one
time, and if the Company has an Affiliate eligible to be appointed as an
Authenticating Agent hereunder or the Trustee does
-45-
<PAGE> 53
not have an office capable of authenticating Securities upon original issuance
located in a Place of Payment where the Company wishes to have Securities of
such series authenticated upon original issuance, the Trustee, if so requested
by the Company in writing (which writing need not comply with Section 102 and
need not be accompanied by an Opinion of Counsel), shall appoint in accordance
with this Section an Authenticating Agent (which, if so requested by the
Company, shall be such Affiliate of the Company) having an office in a Place of
Payment designated by the Company with respect to such series of Securities.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not later than 15 days after a Regular Record
Date, a list, in such form as the Trustee may reasonably require, containing
all the information in the possession or control of the Company, or any of its
Paying Agents other than the Trustee, as to the names and addresses of the
Holders of Securities as of the immediately preceding Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 701, and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under Section 702(b).
-46-
<PAGE> 54
SECTION 703. Reports by Trustee.
(a) On or before August 1 in each year following the date hereof,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
SECTION 704. Reports by Company.
In addition to the certificates delivered to the Trustee pursuant to
Section 1007, the Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant to such Act; provided, however,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation, partnership or
trust, shall be organized and validly existing under the laws of the
United States 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 any
premium and interest (including all additional amounts, if any,
payable pursuant to Section 1004) on all the Securities and the
performance or observance of every other covenant of this Indenture on
the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction
and treating any indebtedness which becomes an obligation of the
Company or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
-47-
<PAGE> 55
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 801, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and coupons
and may liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the
Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities pursuant to Article Eight; or
(2) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities (and 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; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form, provided
that any
-48-
<PAGE> 56
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material
respect; or
(5) to add to, change or eliminate any of the provisions
of this Indenture in respect of one or more series of Securities,
provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective
only when there is no such Security Outstanding; or
(6) to provide for adjustment of conversion rights
pursuant to Section 1505 hereof; or
(7) to establish the form or terms of Securities of any
series and any related coupons as permitted by Sections 201 and 301;
or
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
defective or inconsistent with any other provision herein or in any
supplemental indenture, or to make any other provisions with respect
to matters or questions arising under this Indenture; provided,
however, that such action shall not adversely affect the interests of
the Holders of Securities of any series or any related coupons in any
material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture, by Act of said Holders delivered to the Company and the Trustee, the
Company, when authorized by 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 and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or
any installment of principal of or interest on, any Security, or
reduce the principal amount thereof or the rate of interest thereon or
any premium payable upon the redemption thereof, or change the
Redemption Date thereof, or change any obligation of the Company to
pay additional amounts pursuant to Section 1004 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount
Security that would be
-49-
<PAGE> 57
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or change the coin or currency in
which any Security or any premium or interest thereon is payable, or
change any right of redemption, purchase or repayment by the Company
at the option of the Holder, or adversely affect the right to convert
Securities, if applicable, or modify the provisions of this Indenture
with respect to subordination of any Security in a manner adverse to
the Holder thereof, or impair the right to institute suit for the
enforcement of (x) any such payment on or after the Stated Maturity
thereof (or, in the case of redemption, on or after the Redemption
Date) or (y) any conversion right with respect to any Security, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1404 for quorum or voting, or
(3) change any obligation of the Company to maintain an
office or agency in the places and for the purposes specified in
Section 1002, or
(4) modify any of the provisions of this Section, Section
513 or Section 1008 except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder of a
Security or coupon with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1008 or
the deletion of this provision, in accordance with the requirements of
Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
-50-
<PAGE> 58
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 and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Outstanding Securities of such series and of like
tenor.
SECTION 907. Subordination Unimpaired.
This Indenture may not be amended to alter the subordination of any
Outstanding Securities without the written consent of each holder of Senior
Indebtedness then outstanding that would be adversely affected thereby.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 301 with respect to any
series of Securities, any interest due on Bearer Securities on or before
Maturity shall be payable only upon presentation and surrender of the several
coupons for such interest installments as are evidenced thereby as they
severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series an office or
agency where Securities of that series may be presented or surrendered for
payment or, if applicable, for conversion, where Securities of that series
-51-
<PAGE> 59
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. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment or, if applicable, for
conversion, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served and
where Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment (including
payment of any additional amounts payable on Securities of that series pursuant
to Section 1004) or, if applicable, for conversion; provided, however, that if
the Securities of that series are listed on The International Stock Exchange of
the United Kingdom and the Republic of Ireland Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Securities of that
series and this Indenture may be served. The Company will give prompt written
notice to the Trustee and prompt notices to the Holders as provided in Section
106 of the location, and any change in the location, of any such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to
furnish the Trustee with the address thereof, such presentations and surrenders
of Securities of that series may be made and notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any additional amounts payable on
Bearer Securities of that series pursuant to Section 1004) or, if applicable,
for conversion at any Paying Agent for such series located outside the United
States, and the Company hereby appoints the same as its agents to receive such
respective presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States, provided, however, that,
if the Securities of a series are denominated and payable in Dollars payment of
principal of and any premium and interest on any Bearer Security (including any
additional amounts payable on Securities of such series pursuant to Section
1004) shall be made at the office of the Company's Paying Agent in the Borough
of Manhattan, The City of New York, if (but only if) payment in Dollars of the
full amount of such principal, premium, interest or additional amounts, as the
case may be, at all offices or agencies outside the United States maintained
for the purpose by the
-52-
<PAGE> 60
Company in accordance with this Indenture is illegal or effectively precluded
by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other
offices or agencies where Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to so maintain an office or
agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee and the Holders of any such designation or rescission and of any
other change in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of and any premium or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or prior to each due date of the principal of
and any premium or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal and any premium or interest
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure to so act.
The Company will cause each Paying Agent for any series of Securities
(other than the Company or the Trustee) to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will (i) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent
and (ii) during the continuance of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment in
respect of the Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of and any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal and any premium or interest has become
-53-
<PAGE> 61
due and payable shall be paid to the Company on Company Request (unless
otherwise required by mandatory provisions of applicable escheat or abandoned
or unclaimed property law), or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall (unless otherwise required by mandatory provisions
of applicable escheat or abandoned or unclaimed property law) thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Additional Amounts.
If the Securities of a series provide for the payment of additional
amounts, the Company will pay to the Holder of any Security of such series or
any coupon appertaining thereto additional amounts as provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of additional amounts provided for in
this Section to the extent that, in such context, additional amounts are, were
or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of additional amounts (if
applicable) in any provisions hereof shall not be construed as excluding
additional amounts in those provisions hereof where such express mention is not
made.
If the Securities of a series provide for the payment of additional
amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities or coupons and the
Company will pay to the Trustee or such Paying Agent the additional amounts
required by this Section. The Company covenants to indemnify the Trustee and
any Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them in
reliance on any Officers' Certificate furnished pursuant to this Section.
-54-
<PAGE> 62
SECTION 1005. Purchase of Securities by Company or Subsidiary.
If and so long as the Securities of a series are listed on The
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited and such stock exchange shall so require, the Company will not, and
will not permit any of its Subsidiaries to, purchase any Securities of that
series by private treaty at a price (exclusive of expenses and accrued
interest) which exceeds 120% of the mean of the nominal quotations of the
Securities of that series as shown in The Stock Exchange Daily Official List
for the last trading day preceding the date of purchase.
SECTION 1006. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of the Trustee, will appoint, in the manner provided in Section 610, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 1007. Statement by Officer 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, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For
purposes of this Section 1007, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in (i) Section 1005 with respect to the
Securities of any series or (ii) any covenant of the Company added to this
Indenture pursuant to clause (17) of Section 301 for the benefit of the Holders
of such series, if before the time for such compliance the Holders of a
majority in principal amount of the Outstanding Securities of such series
shall, by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
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.
-55-
<PAGE> 63
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In the case of any redemption at the election
of the Company of less than all the Securities of any series, the Company
shall, at least 45 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date, of the principal amount of Securities of such
series to be redeemed and, if applicable, of the tenor of the Securities of
such series to be redeemed. In the case of any redemption of Securities (i)
prior to the expiration of any restriction on such redemption provided in the
terms of such Securities or elsewhere in this Indenture, or (ii) pursuant to an
election of the Company which is subject to a condition specified in the terms
of such Securities, the Company shall furnish the Trustee with an Officers'
Certificate evidencing compliance with such restriction or condition.
SECTION 1103. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series of a specified tenor are to be
redeemed) the particular Securities to be redeemed shall be selected not more
than 45 days prior to the Redemption Date by the Company or the Trustee, from
the Outstanding Securities of such series not previously called for redemption,
by such method as the Company or the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Registered Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of global Securities
of such series. If less than all of the Securities of such series and of a
specified tenor are to be redeemed, the particular Securities to be redeemed
shall be selected not more than 45 days prior to the Redemption Date by the
Company or the Trustee, from the Outstanding Securities of such series and
specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Company or the Trustee, as the case may be, shall promptly notify
the other 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. If any Security selected for partial redemption is surrendered for
conversion after such selection, the converted portion of such Security shall
be deemed (so far as may be) to be the portion selected for redemption. Upon
any redemption of less than all the Securities of a series, for purposes of
selection for redemption the Company and the Trustee may treat as Outstanding
Securities surrendered for conversion during the period of 15 days next
preceding the mailing of a notice of redemption, and need not treat as
Outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
-56-
<PAGE> 64
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 to the Holders of Securities to be redeemed not less than 30 nor more than
45 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 of any Securities, the principal amounts) of the
particular Securities to be redeemed, and that on and after the
Redemption Date, upon surrender of the Securities, new Securities of
such series in principal amount equal to the unredeemed part thereof
will be issued,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities, together
in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is
the case, and
(7) if applicable, the Conversion Price then in effect
and the date on which the right to convert the Securities or portions
thereof to be redeemed will expire.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
If any of the Securities to be redeemed is in the form of a Book-Entry
Security, then the Company shall modify the notice of redemption to the extent
necessary to accord with the procedures of the Depository applicable to
redemption.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or prior to 11:00 a.m. Eastern time on any Redemption Date, the
Company shall deposit with the Trustee by 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
-57-
<PAGE> 65
(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date. If any
Security called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any Paying Agent or so segregated and held in
trust for the redemption of such Security shall be paid to the Company upon
delivery of a Company Request to the Trustee or such Paying Agent, or, if then
held by the Company, shall be discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and provided, further, that, unless otherwise specified as
contemplated by Section 301, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that interest represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
-58-
<PAGE> 66
SECTION 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment thereof (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Registered Security or Securities of the
same series and of like tenor, of any authorized denomination as requested by
such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been (x) converted
into Common Stock or (y) redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series, provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
-59-
<PAGE> 67
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee a Company Order
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
credited. Not less than 30 days before each such sinking fund payment date the
Company or the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 1103 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 1104. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
If specified as contemplated pursuant to Section 301 to be applicable
with respect to Securities of a series, the Company may at its option by Board
Resolution, at any time, elect to have either Section 1302 or Section 1303
applied to the Outstanding Securities of any such series denominated and payable
in U.S. dollars upon compliance with the conditions set forth below in this
Article Thirteen.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of any series
(other than any convertible series) on the date the conditions set forth in
Section 1304 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by the Outstanding Securities of such
series and to have satisfied all its other obligations under the Securities of
such series and this Indenture insofar as the Securities of such series are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of the Securities of such series to receive, solely from the trust fund
described in Section 1304 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on the Securities
of such series when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 304, 305, 306, 1002, 1003 and 1004,
(C) the rights, powers, trusts, duties and immunities of the Trustee hereunder
and (D) this Article Thirteen. Subject to compliance with this Article
Thirteen, the Company may exercise its option under this Section 1302
notwithstanding the prior exercise of its option under Section 1303.
-60-
<PAGE> 68
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1301
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Sections 801 and
1005 and any covenant of the Company added to this Indenture pursuant to clause
(17) of Section 301 for the benefit of the Holders of Securities of such series,
and (ii) the occurrence of an event specified in clause (4) of Section 501 (with
respect to Sections 801 and 1005 and any such covenant added to this Indenture)
shall not be deemed to be an Event of Default on and after the date the
conditions set forth in Section 1304 are satisfied (hereinafter, "covenant
defeasance"), but the remainder of this Indenture and such Securities shall be
unaffected thereby. For this purpose, such covenant defeasance means that the
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such Section, covenant or clause,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section, covenant or clause or by reason of any reference in any such
Section, covenant or clause to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
1302 or Section 1303 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 609 who shall agree to comply with the
provisions of this Article Thirteen applicable to it) as trust funds
in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series, (A) money in an amount, or
(B) U.S. Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (C) a combination thereof, sufficient
(without consideration of the reinvestment to any amounts and after
payment of all taxes or other charges or assessments in respect thereof
payable by the Trustee), in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee (or other qualifying trustee) to pay and
discharge, the principal of (and premium, if any) and each installment
of interest on the Securities and any coupons pertaining thereto on the
Stated Maturity of such principal (and premium, if any) or installment
of interest in accordance with the terms of this Indenture and of the
Securities of such series. For this purpose, "U.S. Government
Obligations" means securities that are (x) direct obligations of the
United States of America for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment of which is unconditionally guaranteed as
a full faith and credit obligation by the United States of America,
which, in either case, are not callable or redeemable at the option of
the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933)
as custodian with respect to any such U.S. Government Obligation or a
specific payment of principal of or interest on any such U.S.
-61-
<PAGE> 69
Government Obligation held by such custodian for the account of the
holder of such depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from
the amount payable to the holder of such depository receipt from any
amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the
U.S. Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1302, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the
date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the
Outstanding Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred.
(3) In the case of an election under Section 1303, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of the Outstanding Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit and covenant defeasance and will
be subject to Federal income tax on the same amount, in the same
manner and at the same times as would have been the case if such
deposit and covenant defeasance had not occurred.
(4) No Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to
the Securities of such series shall have occurred and be continuing on
the date of such deposit or, insofar as subsections 501(5) and (6) are
concerned, at any time during the period ending on the 91st day after
the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(5) Such defeasance or covenant defeasance shall not
cause the Trustee to have a conflicting interest within the meaning of
the Trust Indenture Act with respect to any securities of the Company.
(6) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default under, any
other agreement or instrument to which the Company is a party or by
which it is bound.
(7) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to either the defeasance
under Section 1302 or the covenant defeasance under Section 1303 (as
the case may be) have been complied with and, in the case of such
Officers' Certificate, additionally stating that the deposit was not
made by the Company with the intent of preferring the Holders of the
Securities of such series over any other creditors of the
-62-
<PAGE> 70
Company or with the intent of defeating, hindering, delaying or
defrauding creditors of the Company or others.
SECTION 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee (or other qualifying trustee -- collectively, for
purposes of this Section 1305, the "Trustee") pursuant to Section 1304 in
respect of the Securities of such series shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities of such
series and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of the Securities of such series, of all
sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds
except to the extent required by law. Money and U.S. Government Obligations
(including the proceeds thereof) so held in trust shall not be subject to
Article Sixteen.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Thirteen to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1304 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with Section
1305; provided, however, that if the Company makes any payment of principal of
or any premium or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
the Securities of such series to receive such payment from the money held by
the Trustee or the Paying Agent.
-63-
<PAGE> 71
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1402. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or in London as the Trustee shall 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 106, not less than
21 nor more than 120 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1401, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or in
London 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 a Person shall (a) be
a Holder of one or more Securities or (b) be a Person appointed by an
instrument in writing as proxy by a Holder of one or more Securities. The only
Persons who shall be entitled to be present or to speak at any meeting of
Holders shall be the Persons entitled to vote at such meeting and their counsel
and any representatives of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 1404. Quorum; Action.
The Persons entitled to vote a majority in 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
-64-
<PAGE> 72
case the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1402(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by Section 512 or the proviso to the first paragraph
of Section 902, any resolution presented to a meeting (or adjourned meeting
duly reconvened at which a quorum is present as aforesaid) may be adopted by
the affirmative vote of the Holders of a majority in principal amount of the
Outstanding Securities of that series; provided, however, that, any resolution
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a
majority, in 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 principal amount of the Outstanding Securities of that
series.
To the extent consistent with the terms of this Indenture, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all
the Holders of Securities of such series and the related coupons, whether or
not present or represented at the meeting.
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding
of Securities of such series and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of 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 in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons
-65-
<PAGE> 73
entitled to vote a majority in 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 or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
SECTION 1406. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
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 said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FIFTEEN
CONVERSION OF SECURITIES
SECTION 1501. Applicability of Article.
The provisions of this Article shall be applicable to the Securities
of any series which are convertible into Common Stock or, if so provided in a
Board Resolution, Officers' Certificate or executed supplemental indenture
referred to in Sections 201 and 301 by or pursuant to which the form and terms
of the Securities of such series were established, cash in lieu thereof, as and
to the extent provided by the terms of the Securities of such series.
-66-
<PAGE> 74
SECTION 1502. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Conversion Agent
at any time during usual business hours, until and including, but not after the
close of business on the second Business Day prior to the Stated Maturity of
the principal of such Security, at its office or agency maintained for the
purpose as provided in this Indenture, accompanied by a fully executed written
notice, in substantially the form set forth on the reverse of the Security,
that the Holder elects to convert such Security or a stated portion thereof
constituting a multiple of $1,000 in principal amount, and, if such Security is
surrendered for conversion during the period between the close of business on
any record date for such Security and the opening of business on the related
Interest Payment Date and has not been called for redemption on a Redemption
Date within such period, accompanied also by payment of an amount equal to the
interest payable on such Interest Payment Date on the portion of the principal
amount of the Security being surrendered for conversion. The Holder of any
Security at the close of business on any record date for such Security shall be
entitled to receive the interest payable on such Security on the corresponding
Interest Payment Date notwithstanding the conversion thereof after such record
date. Such notice of conversion shall also state the name or names (and
address) in which the certificate or certificates for shares of Common Stock
shall be issued (or to whom payment in cash in lieu of Common Stock shall be
made). Securities surrendered for conversion shall (if so required by the
Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Conversion Agent duly executed by, the Holder or his attorney
duly authorized in writing. As promptly as practicable after the receipt of
such notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 1507, issue and deliver at such office or
agency to such Holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable on conversion of such
Security in accordance with the provisions of such Security and cash, as
provided in Section 1503, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion or, if so provided in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred
to in Sections 201 and 301 by or pursuant to which the form and terms of the
Securities of such series were established, cash in lieu of shares of Common
Stock. Such conversion shall be at the Conversion Price in effect, and shall
be deemed to have been effected, immediately prior to the close of business on
the date (herein called the "Date of Conversion") on which such notice in
proper form shall have been received by the Conversion Agent and such Security
shall have been surrendered as aforesaid, and the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable, if any, upon such conversion shall be deemed to have become on the
Date of Conversion the holder or holders of record of the shares represented
thereby; provided, however, that any such surrender on any date when the stock
transfer books of the Company shall be closed shall constitute the Person or
Persons in whose name or names the certificate or certificates for such shares
are to be issued, if any, as the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open but such conversion shall nevertheless be at the
Conversion Price in effect at the close of business on the date when such
Security shall have been so surrendered with the conversion notice in proper
form. In the case of conversion of a portion, but less than all, of a
Security, the Company shall execute, and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a Security or
Securities in the aggregate principal amount of the unconverted portion of the
Security surrendered. Except as otherwise
-67-
<PAGE> 75
expressly provided in this Indenture, no payment or adjustment shall be made
for interest accrued on any Security (or portion thereof) converted or for
dividends or distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the Company
to redeem, purchase or repay such Security shall terminate upon receipt by the
Company of any notice of conversion of such Security.
SECTION 1503. Fractional Interests.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If
any fraction of a share of Common Stock would, except for the provisions of
this Section 1503, be issuable on the conversion of any Security or Securities,
the Company shall make payment in lieu thereof in cash equal to the value of
such fraction computed on the basis of the Last Sale Price of one share of
Common Stock on the most recent Trading Day prior to the Date of Conversion.
"Last Sale Price" on any Trading Day shall mean (i) the closing price regular
way (or, if no closing price is reported the average of the bid and asked
prices) as reported on the New York Stock Exchange Composite Tape, or (ii) if
on such Trading Day the Common Stock is not listed or admitted to trading on
such exchange, the closing price regular way (or, if no closing price is
reported the average of the bid and asked prices) on the principal national
securities exchange on which the Common Stock is listed or admitted to trading,
or (iii) if not listed or admitted to trading on any national securities
exchange on such Trading Day, then the average of the closing bid and asked
prices as reported through the National Association of Securities Dealers, Inc.
on its NASDAQ National Market or other NASDAQ market or through a similar
organization if NASDAQ is no longer reporting information, or (iv) if the
Common Stock is not listed or admitted to trading on any national securities
exchange or quoted on such National Market or other NASDAQ market on such
Trading Day, then the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose or (v) if not quoted
by any such organization on such Trading Day, the fair value of such Common
Stock on such Trading Day, as determined by the Board of Directors. The term
"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on any of the above
mentioned exchanges or in such markets.
SECTION 1504. Adjustment of Conversion Price.
The conversion price or rate (herein called the "Conversion Price")
for a series of Securities shall be as set forth in a Board Resolution,
Officers' Certificate or executed supplemental indenture referred to in
Sections 201 and 301 by or pursuant to which the form and terms of the
Securities of such series were established, and, except as otherwise provided
therein, shall be subject to adjustment from time to time as follows:
(a) In case the Company shall (1) make or pay a dividend (or other
distribution) in shares of Common Stock on any class of Capital Stock of the
Company, (2) subdivide its outstanding shares of Common Stock into a greater
number of shares or (3) combine or reclassify its outstanding
-68-
<PAGE> 76
shares of Common Stock into a smaller number of shares, the Conversion Price in
effect immediately prior to such action shall be adjusted so that the Holder of
any Security thereafter surrendered for conversion shall be entitled to receive
the number of shares of Common Stock which he would have owned immediately
following such action had such Security been converted immediately prior
thereto. An adjustment made pursuant to this subsection (a) shall become
effective immediately, except as provided in subsection (h) below, after the
record date in the case of a dividend or distribution and shall become
effective immediately after the effective date in the case of a subdivision or
combination.
(b) In case the Company shall issue rights, options or warrants to
all holders of Common Stock entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the then current market price
per share (as determined pursuant to subsection (f) below) of the Common Stock
on the record date mentioned below, the Conversion Price shall be adjusted to a
price, computed to the nearest cent, so that the same shall equal the price
determined by multiplying:
(1) the Conversion Price in effect immediately prior to
the date of issuance of such rights, options or warrants by a
fraction, of which
(2) the numerator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants, immediately prior to such issuance, plus (B) the
number of shares which the aggregate offering price of the total
number of shares so offered for subscription or purchase would
purchase at such current market price (determined by multiplying such
total number of shares by the exercise price of such rights, options
or warrants and dividing the product so obtained by such current
market price), and of which
(3) the denominator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights,
options or warrants, immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which are so offered for
subscription or purchase.
Such adjustment shall become effective immediately, except as provided in
subsection (h) below, after the record date for the determination of holders
entitled to receive such rights, options or warrants; provided, however, that
if any such rights, options or warrants issued by the Company as described in
this subsection (b) are only exercisable upon the occurrence of certain
triggering events relating to control and provided for in shareholder rights
plans, then the Conversion Price will not be adjusted as provided in this
subsection (b) until such triggering events occur.
(c) In case the Company or any Subsidiary of the Company shall
distribute to all holders of Common Stock evidences of indebtedness, shares of
Capital Stock other than Common Stock, cash or other assets (including
securities, but other than (x) regular dividends or distributions paid
exclusively in cash or (y) any dividend or distribution for which an adjustment
is required to be made in accordance with subsection (a) or (b) above), then in
each such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction of which the
numerator shall be the then current market price per share (determined as
provided in subsection (f) below) of the
-69-
<PAGE> 77
Common Stock on the record date mentioned below less the then fair market value
(as reasonably determined in good faith by the Board of Directors) of the
portion of the assets so distributed applicable to one share of Common Stock,
and of which the denominator shall be such current market price per share of
the Common Stock. Such adjustment shall become effective immediately, except
as provided in subsection (h) below, after the record date for the
determination of stockholders entitled to receive such distribution.
Notwithstanding the foregoing, in the event that the fair market value of the
assets, evidences of indebtedness or other securities so distributed applicable
to one share of Common Stock equals or exceeds such current market price per
share of Common Stock, or such current market price exceeds such fair market
value by less than $0.10 per share, the Conversion Price shall not be adjusted
pursuant to this subsection (c) and, to the extent applicable, the provisions
of subsection (k) shall apply to such distribution.
(d) In case the Company or any Subsidiary of the Company shall
make any distribution consisting exclusively of cash (excluding any cash
portion of distributions for which an adjustment is required to be made in
accordance with (c) above, or cash distributed upon a merger or consolidation
to which Section 1505 applies) to all holders of Common Stock in an aggregate
amount that, combined together with (i) all other such all-cash distributions
made within the then preceding 12 months in respect of which no adjustment has
been made and (ii) any cash and the fair market value of other consideration
paid or payable in respect of any tender offer by the Company or any of its
Subsidiaries for Common Stock concluded within the preceding 12 months in
respect of which no adjustment has been made, exceeds 15% of the Company's
market capitalization (defined as being the produce of the then current market
price of the Common Stock (determined as provided in subsection (f) below)
times the number of shares of Common Stock then outstanding) on the record date
of such distribution, then in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such distribution
by a fraction of which the numerator shall be the then current market price per
share of the Common Stock on such record date less the amount of the cash so
distributed applicable to one share of Common Stock, and of which the
denominator shall be such current market price per share of the Common Stock.
Such adjustment shall become effective immediately, except as provided in
subsection (h) below, after the record date for the determination of
stockholders entitled to receive such distribution. Notwithstanding the
foregoing, in the event that the cash so distributed applicable to one share of
Common Stock equals or exceeds such current market price per share of Common
Stock, or such current market price exceeds such amount of cash by less than
$0.10 per share, the Conversion Price shall not be adjusted pursuant to this
subsection (d), and, to the extent applicable, the provisions of subsection (k)
shall apply to such distribution.
(e) In case there shall be completed a tender or exchange offer
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock (any such tender or exchange offer being referred to as an
"Offer") that involves an aggregate consideration having a fair market value as
of the expiration of such Offer (the "Expiration Time") that, together with (i)
any cash and the fair market value of any other consideration payable in
respect of any other Offer, as of the expiration of such other Offer, expiring
within the 12 months preceding the expiration of such Offer and in respect for
which no Conversion Price adjustment pursuant to this subsection (e) has been
made and (ii) the aggregate amount of any all-cash distributions referred to in
subsection (d) of this Section 1504 to all holders of Common Stock within the
12 months preceding the expiration
-70-
<PAGE> 78
of such Offer for which no Conversion Price adjustment pursuant to such
subsection (d) has been made, exceeds 15% of the product of the then current
market price per share (determined as provided in subsection (f) below) of the
Common Stock on the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, the
Conversion Price shall be reduced by multiplying such Conversion Price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be (i) the product of the then current market price per share (determined
as provided in subsection (f) below) of the Common Stock on the Expiration Time
times the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time minus (ii) the fair market value of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the Offer) of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so accepted being
referred to as the "Purchased Shares") and the denominator shall be the product
of (i) such current market price per share on the Expiration Time times (ii)
such number of outstanding shares on the Expiration Time less the number of
Purchased Shares, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. For purposes of
subsections (d) and (e), the fair market value of any consideration with respect
to an Offer shall be reasonably determined in good faith by the Board of
Directors of the Company and described in a Board Resolution.
(f) For the purpose of any computation under subsections (b), (c),
(d) and (e) above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the Last Sale Prices of a share of
Common Stock for the five consecutive Trading Days selected by the Company
commencing not more than 20 Trading Days before, and ending not later than, the
earlier of the date in question and the date before the "ex date," with respect
to the issuance, distribution or Offer requiring such computation. For
purposes of this paragraph, the term "ex date," when used with respect to any
issuance, distribution or payments with respect to an Offer, means the first
date on which the Common Stock trades regular way on the New York Stock
Exchange (or if not listed or admitted to trading thereon, then on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading) without the right to receive such issuance, distribution
or Offer.
(g) In addition the foregoing adjustments in subsections (a), (b),
(c), (d) and (e) above, the Company will be permitted to make such reductions
in the Conversion Price as it considers to be advisable in order that any event
treated for Federal income tax purposes as a dividend of stock or stock rights
will not be taxable to the holders of the shares of Common Stock.
In the event the Company elects to make such a reduction in the
Conversion Price, the Company will comply with the requirements of Rule 14e-1
of the Securities Exchange Act of 1934, as amended and any other Federal and
state laws and regulations thereunder if and to the extent that such laws and
regulations are applicable in connection with the reduction of the Conversion
Price of the Notes; provided, however, that any provisions of this Indenture
which conflict with such laws shall be deemed to be superseded by the
provisions of such laws.
(h) In any case in which this Section 1504 shall require that an
adjustment (including by reason of the last sentence of subsection (a) or (c)
above) be made immediately following a record date, the Company may elect to
defer the effectiveness of such adjustment (but in no event until a
-71-
<PAGE> 79
date later than the effective time of the event giving rise to such
adjustment), in which case the Company shall, with respect to any Security
converted after such record date and on and before such adjustment shall have
become effective (i) defer paying any cash payment pursuant to Section 1503 or
issuing to the Holder of such Security the number of shares of Common Stock and
other Capital Stock of the Company (or other assets or securities) issuable
upon such conversion in excess of the number of shares of Common Stock and
other Capital Stock of the Company issuable thereupon only on the basis of the
Conversion Price prior to adjustment, and (ii) not later than five Business
Days after such adjustment shall have become effective, pay to such Holder the
appropriate cash payment pursuant to Section 1503 and issue to such Holder the
additional shares of Common Stock and other Capital Stock of the Company (or
other assets or securities) issuable on such conversion.
(i) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% of the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article Fifteen shall be made to the nearest cent or to the nearest one-
hundredth of a share, as the case may be.
(j) Whenever the Conversion Price is adjusted as herein provided,
the Company shall promptly (i) file with the Trustee and each Conversion Agent
an Officers' Certificate setting forth the Conversion Price after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness
of such adjustment, and (ii) give or cause to be given a notice of such
adjustment to each Holder of Securities in the manner provided in Section 106.
(k) In the event that the Company distributes rights (including
rights to distributions referred to by paragraphs (c) and (d) of this Section
1504 to the extent this paragraph (k) applies thereto) or warrants (other than
those referred to in subsection (b) above) pro rata to holders of Common Stock,
so long as any such rights or warrants have not expired or been redeemed by the
Company, the Company shall make proper provision so that the Holder of any
Security surrendered for conversion will be entitled to receive upon such
conversion, in addition to the shares of Common Stock issuable upon such
conversion (the "Conversion Shares"), a number of rights or warrants to be
determined as follows: (i) if such conversion occurs on or prior to the date
for the distribution to the holders of rights or warrants of separate
certificates evidencing such rights or warrants (the "Distribution Date"), the
same number of rights or warrants to which a holder of a number of shares of
Common Stock equal to the number of Conversion Shares is entitled at the time
of such conversion in accordance with the terms and provisions of and
applicable to the rights or warrants, and (ii) if such conversion occurs after
such Distribution Date, the same number of rights or warrants to which a holder
of the number of shares of Common Stock into which the principal amount of such
Security so converted was convertible immediately prior to such Distribution
Date would have been entitled on such Distribution Date in accordance with the
terms and provisions of and applicable to the rights or warrants.
-72-
<PAGE> 80
SECTION 1505. Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.
If any of the following shall occur, namely: (a) any reclassification
or change of outstanding shares of Common Stock issuable upon conversion of any
Securities (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a subdivision or
combination), (b) any consolidation or merger of the Company with or into any
other Person, or the merger of any other Person with or into the Company (other
than a merger which does not result in any reclassification, change,
conversion, exchange or cancellation of outstanding shares of Common Stock) or
(c) any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety, then the Company, or such successor or
purchasing entity, as the case may be, shall, as a condition precedent to such
reclassification, change, consolidation, merger, conveyance, transfer or lease,
execute and deliver to the Trustee a supplemental indenture providing that the
Holder of each Security then outstanding shall have the right to convert such
Security only into the kind and amount of shares of stock and other securities
and property (including cash) receivable upon such reclassification, change,
consolidation, merger, conveyance, transfer or lease by a holder of the number
of shares of Common Stock issuable upon conversion of such Security immediately
prior to such reclassification, change, consolidation, merger, conveyance,
transfer or lease assuming such holder of Common Stock of the Company failed to
exercise his rights of an election, if any, as to the kind or amount of
securities, cash and other property receivable upon such reclassification,
change, consolidation, merger, conveyance, transfer or lease (provided that if
the kind or amount of securities, cash and other property receivable upon such
reclassification, change, consolidation, merger, conveyance, transfer or lease
is not the same for each share of Common Stock of the Company held immediately
prior to such reclassification, change, consolidation, merger, conveyance,
transfer or lease in respect of which such rights of election shall not have
been exercised ("non-electing share"), then for the purpose of this Section
1505 the kind and amount of securities, cash and other property receivable upon
such reclassification, change, consolidation, merger, conveyance, transfer or
lease by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this
Article Fifteen. If, in the case of any such consolidation, merger,
conveyance, transfer or lease, the stock or other securities and property
(including cash) receivable thereupon or in connection therewith by a holder of
shares of Common Stock includes shares of stock or other securities and
property (including cash) of a Person other than the successor or purchasing
Person, as the case may be, in such consolidation, merger, conveyance, transfer
or lease, then such supplemental indenture shall also be executed by such other
Person and shall contain such additional provisions to protect the interests of
the Holders of the Securities as the Board of Directors shall reasonably
consider necessary by reason of the foregoing. The provisions of this Section
1505 shall similarly apply to successive consolidations, mergers, conveyances,
transfer or leases.
Notice of the execution of each such supplemental indenture shall be
given to each Holder of Securities in the manner provided in Section 106.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the
-73-
<PAGE> 81
kind or amount of shares of stock or other securities or property (including
cash) receivable by Holders of Securities upon the conversion of their
Securities after any such reclassification, consolidation, merger, conveyance,
transfer or lease or to any adjustment to be made with respect thereto, but,
subject to the provisions of Sections 601 and 603, may accept as conclusive
evidence of the correctness of any such provision, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated
to file with the Trustee prior the execution of any such supplemental
indenture) with respect thereto.
SECTION 1506. Notice of Certain Events.
If:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than in
cash; or
(b) the Company shall authorize the granting to all
holders of Common Stock of rights, warrants or options to subscribe
for or purchase any shares of stock of any class or of any other
rights; or
(c) the Company shall authorize any reclassification or
change of the Common Stock (other than a subdivision or combination of
its outstanding shares of Common Stock or changes in the par value of
the Common Stock), or any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or the conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety;
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company; or
(e) the Company or any of its Subsidiaries shall complete
an Offer;
then, the Company shall cause to be filed at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 1002,
and shall cause to be given to each Holder of Securities, in the manner
provided in Section 106, at least 20 days before the date hereinafter specified
(or the earlier of the dates hereinafter specified, in the event that more than
one date is specified), a notice stating the date on which (1) a record is
expected to be taken for the purpose of such dividend, distribution, rights,
warrants, options or Offer or if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, warrants or options or to participate in such Offer are
to be determined, or (2) such reclassification, change, consolidation, merger,
conveyance, transfer or lease, dissolution, liquidation or winding-up is
expected to become effective and the date, if any is to be fixed, as of which
it is expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger,
conveyance, transfer or lease, dissolution, liquidation or winding-up.
-74-
<PAGE> 82
SECTION 1507. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in a name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
SECTION 1508. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented
for conversion, provided, however, that nothing contained herein shall be
construed to preclude the Company from satisfying its obligations in respect of
the conversion of Securities by delivery of repurchased shares of Common Stock
which are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any Federal or State law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing
in this Section 1508 shall be deemed to affect in any way the obligations of
the Company to convert Securities into Common Stock as provided in this Article
Fifteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of counsel, be
necessary in order that the Company may validly and legally issue fully paid
and non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 1509. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, any Conversion Agent nor any agent of either
shall at any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the Officers'
Certificate referred
-75-
<PAGE> 83
to in Section 1504(j), or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or herein or in
any supplemental indenture provided to be employed, in making the same. Neither
the Trustee, any Conversion Agent nor any agent of either shall be accountable
with respect to the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property (including cash), which may at
any time be issued or delivered upon the conversion of any Security, and
neither the Trustee, any Conversion Agent nor any agent of either makes any
representation with respect thereto. Neither the Trustee, any Conversion Agent
nor any agent of either shall be responsible for any failure of the Company to
issue, register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property (including cash) upon the
surrender of any Security for the purpose of conversion or, subject to Sections
601 and 603, to comply with any of the covenants of the Company contained in
this Article Fifteen.
SECTION 1510. Return of Funds Deposited for Redemption of Converted
Securities.
Any funds which at any time shall have been deposited by the Company
or on its behalf with the Trustee or any Paying Agent for the purpose of paying
the principal of and any premium and interest on any of the Securities and
which shall not be required for such purposes because of the conversion of such
Securities, as provided in this Indenture, shall forthwith after such
conversion be repaid to the Company by the Trustee or such Paying Agent.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture to
the contrary notwithstanding, the indebtedness evidenced by the Securities of
each series is subordinate and junior in right of payment to all Senior
Indebtedness to the extent provided herein or, if so provided in a Board
Resolution, Officers' Certificate or executed supplemental indenture referred
to in Sections 201 and 301 by or pursuant to which the form and terms of the
Securities of such series were established, as and to the extent provided by
the terms of the Securities of such series, and each Holder of Securities of
each series, by his acceptance thereof, likewise covenants and agrees to the
subordination herein or therein provided and shall be bound by the provisions
hereof or thereof.
This Article Sixteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue
to hold, Senior Indebtedness, and such provisions are made for the benefit of
the holders of Senior Indebtedness, and such holders are made obligees
hereunder and any one or more of them may enforce such provisions.
No payment may be made by the Company on account of the principal of
or any premium or interest on the Securities, or to acquire any of the
Securities (including repurchases of Securities at the option of the Holders)
for cash or property (other than Junior Securities), or on account of any
redemption provisions of the Securities, (i) upon the maturity of any Senior
Indebtedness of the Company by lapse of time, acceleration (unless waived) or
otherwise, unless and until all principal of and any premium and interest on
such Senior Indebtedness are first paid in full (or such payment
-76-
<PAGE> 84
is duly provided for) or (ii) in the event of default in the payment of any
principal of or any premium or interest on any Senior Indebtedness when it
becomes due and payable, whether at stated maturity or at a date fixed for
prepayment or by declaration or otherwise (a "Payment Default"), unless and
until such Payment Default has been cured or waived or otherwise has ceased to
exist.
Upon (i) the happening of an event of default (other than a Payment
Default) that permits the holders of Senior Indebtedness or their
representative immediately to accelerate its maturity and (ii) written notice
of such event of default given to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount outstanding of such Senior
Indebtedness or their representative (a "Payment Notice"), then, unless and
until such event of default has been cured or waived or otherwise has ceased to
exist, no payment (by set off or otherwise) may be made by or on behalf of the
Company on account of the principal of or any premium or interest on the
Securities, or to acquire or repurchase any of the Securities for cash or
property, or on account of any redemption provisions of the Securities, in any
such case other than payments made with Junior Securities of the Company.
Notwithstanding the foregoing, unless (i) the Senior Indebtedness in respect of
which such event of default exists has been declared due and payable in its
entirety within 179 days after the Payment Notice is delivered as set forth
above (the "Payment Blockage Period"), and (ii) such declaration has not been
rescinded or waived, at the end of the Payment Blockage Period, the Company
shall be required to pay all sums not paid to the Holders of the Securities
during the Payment Blockage Period due to the foregoing prohibitions and to
resume all other payments as and when due on the Securities. Any number of
Payment Notices may be given; provided, however, that (i) not more than one
Payment Notice shall be given within a period of any 360 consecutive days and
(ii) no event of default that existed upon the date of such Payment Notice or
the commencement of such Payment Blockage Period (whether or not such event of
default is on the same issue of Senior Indebtedness) shall be made the basis
for the commencement of any other Payment Blockage Period.
Upon any distribution of assets of the Company upon any dissolution,
winding-up, liquidation or reorganization of the Company, whether voluntary of
involuntary, in bankruptcy, insolvency, receivership or a similar proceeding or
upon assignment for the benefit of creditors or any marshaling of assets or
liabilities: (i) the holders of all Senior Indebtedness shall first be
entitled to receive payments in full (or have such payment duly provided for)
before the Holders are entitled to receive any payment on account of the
principal of or any premium or interest on the Securities (other than Junior
Securities); and (ii) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities (other than
Junior Securities), to which the Holders or the Trustee on behalf of the
Holders would be entitled (by set off or otherwise), except for the provisions
of this Article Sixteen, shall be paid by the liquidating trustee or agent or
other Person making such a payment or distribution directly to the holders of
Senior Indebtedness or their representative to the extent necessary to make
payment in full of all such Senior Indebtedness remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior
Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 1601, any payment or distribution of assets of the Company (other than
Junior Securities) shall be received by the Trustee or the Holders at a time
when such payment or distribution is prohibited by the provisions of this
Section 1601, then such payment or distribution (subject to the provisions of
Section 1603
-77-
<PAGE> 85
shall be received and held in trust by the Trustee or such Holders for the
benefit of the holders of Senior Indebtedness, and shall be paid or delivered
by the Trustee or such Holders, as the case may be, to the holders of Senior
Indebtedness remaining unpaid or unprovided for or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on account
of the Senior Indebtedness held or represented by each, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay or to provide for the payment of all such Senior Indebtedness in full after
giving effect to any concurrent payment and distribution to the holders of such
Senior Indebtedness.
The failure to make a payment on account of principal of or any
premium or interest on the Securities of any series by reason of any provision
of this Article Sixteen shall not be construed as preventing the occurrence of
an Event of Default. Nothing contained herein shall impair, as between the
Company and the Holders of Securities of each series, the obligation of the
Company, which is absolute and unconditional, to pay to such Holders the
principal of and any premium and interest on such Securities as and when the
same shall become due and payable in accordance with their terms or prevent the
Trustee or any Holder from exercising all rights, powers and remedies otherwise
permitted by applicable law or hereunder upon a default or Event of Default
hereunder, all subject to the rights of the holders of the Senior Indebtedness
to receive cash, securities or other property otherwise payable or deliverable
to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash, securities or
other property which otherwise would be paid or distributed to the holders of
Senior Indebtedness, shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and such Holders, on the
other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness, and not on account of the Securities of such series.
The provisions of this Section 1601 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
-78-
<PAGE> 86
SECTION 1602. Reliance on Certificate of Liquidating Agent; Further Evidence
as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Company, the Trustee
and the Holders shall be entitled to rely upon an order or decree issued by any
court of competent jurisdiction in which such dissolution or winding-up or
liquidation or reorganization proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or
to the Holders, for the purpose of ascertaining the Persons entitled to
participate in such 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 Sixteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely upon a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee or representative on behalf of such holder)
as evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). If 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 Sixteen, 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, as to the extent to which such
Person is entitled to participate in such payment or distribution, and as to
other facts pertinent to the rights of such Person under this Article Sixteen,
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 1603. Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article Thirteen shall be for the sole benefit of Holders of
Securities of each series subject thereto and, to the extent allocated for the
payment of such Securities, shall not be subject to the subordination
provisions of this Article Sixteen. Otherwise, any deposit of assets with the
Trustee (whether or not in trust) for the payment of the principal of or any
premium or interest on any Securities shall be subject to the provisions of
this Article Sixteen; provided, however, if prior to one Business Day preceding
the date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
the principal of or any premium or interest on any Security) the Trustee shall
not have received with respect to such assets the Officers' Certificate or
written notice provided for in Section 1605, then the Trustee shall have full
power and authority to receive such assets and to apply the same to the purpose
for which they were received.
SECTION 1604. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 1604 shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
1601 if (i) the Company shall be disputing its obligation to make such payment
or perform
-79-
<PAGE> 87
such obligation, and (ii) either (A) no final judgment relating to such dispute
shall have been issued against the Company which is in full force and effect
and is not subject to further review, including a judgment that has become
final by reason of the expiration of the time within which a party may seek
further appeal or review, or (B) in the event of a judgment that is subject to
further review or appeal has been issued, the Company shall in good faith be
prosecuting an appeal or other proceeding for review, and a stay of execution
shall have been obtained pending such appeal or review.
SECTION 1605. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Sixteen or elsewhere in this Indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by Trustee and shall be entitled to
assume conclusively that no such facts exist, unless and until the Trustee
shall have received an Officers' Certificate to that effect or notice in
writing to that effect signed by or on behalf of the holder or holders, or
their representatives, of Senior Indebtedness who shall have been certified by
the Company or otherwise established to the reasonable satisfaction of the
Trustee to be such holder or holders or representatives or from any trustee
under any indenture pursuant to which such Senior Indebtedness shall be
outstanding; provided, however, that, if the Trustee shall not have received
the Officers' Certificate or notice provided for in this Section 1605 at least
one Business Day preceding the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of the principal of or any premium or interest on any Security), then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and apply the same to the
purpose for which they were received and shall not be affected by any notice to
the contrary which may be received by it within one Business Day preceding such
date. The Company shall give prompt written notice to the Trustee and to each
Paying Agent of any facts which would prohibit any payment of moneys to or by
the Trustee or any Paying Agent, and the Trustee shall not be charged with
knowledge of the curing of any default or the elimination of any other fact or
condition preventing such payment or distribution unless and until the Trustee
shall have received an Officers' Certificate to such effect.
SECTION 1606. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Indebtedness as provided in this Article Sixteen and appoints the
Trustee its attorney-in-fact for any and all such purposes, including, in the
event of any dissolution, winding-up, liquidation or reorganization of the
Company (whether in bankruptcy, insolvency or receivership proceedings or upon
an assignment for the benefit of creditors of the Company), the immediate
filing of a claim for the unpaid balance of his Securities in the form required
in said proceedings and cause said claim to be approved. If the Trustee does
not file a proper claim or proof of debt in the form required in such
proceeding prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of the Senior Indebtedness or their
representative is hereby authorized to have the right to file and is hereby
authorized to file an appropriate claim for and on behalf of the Holders of
said Securities. Nothing herein contained shall
-80-
<PAGE> 88
be deemed to authorize the Trustee or the holders of Senior Indebtedness or
their representative to authorize or consent to or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Securityholder in any
such proceeding.
SECTION 1607. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article Sixteen with respect to any Senior Indebtedness which may at the 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 Sixteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 607.
SECTION 1608. 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 Sixteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article Sixteen in addition to or in place of the Trustee;
provided, however, that Sections 1605 and 1607 shall not apply to the Company
if its acts as Paying Agent.
SECTION 1609. Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness.
No right of any present or future holders 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 which any such holder may have
or be otherwise charged with. The holders of Senior Indebtedness may, at any
time or from time to time and in their absolute discretion, change the manner,
place or terms of payment, change or extend the time of payment of, or renew or
alter, any such Senior Indebtedness, or amend or supplement any instrument
pursuant to which any such Senior Indebtedness is issued or by which it may be
secured, or release any security therefor, or exercise or refrain from
exercising any other of their rights under the Senior Indebtedness, including,
without limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without affecting
the obligations of the Company, the Trustee or the Holders of Securities under
this Article Sixteen.
SECTION 1610. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Company.
-----------------------------------
-81-
<PAGE> 89
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.
-82-
<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY
By:
-------------------------------------
FIRST UNION NATIONAL BANK
By:
-------------------------------------
-83-
<PAGE> 91
EXHIBIT A
FORM OF CERTIFICATE TO BE GIVEN BY
BENEFICIAL OWNER OF
INTEREST IN A TEMPORARY GLOBAL SECURITY
NEWFIELD EXPLORATION COMPANY
[Title of Securities]
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account (i) are owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) are owned by United States person(s) that are
(A) foreign branches of United States financial institutions (as defined in
U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States person(s)
who acquired Securities through the foreign branches of the United States
financial institutions and who hold the Securities through such United States
financial institutions on the date hereof (and in either case (A) or (B), each
such United States financial institution hereby agrees, on its own behalf or
through its agent, to comply with the requirements of Section 165(j)(3)(A), (B)
or (C) of the Internal Revenue Code of 1986 as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in addition
if the owner of the Securities is a United States or foreign financial
institution described in clause (iii) above (whether or not also described in
clause (i) or (ii)), this is to further certify that such financial institution
has not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below (i) in the
case of debt securities, the Securities are beneficially owned by (a) non-U.S.
person(s) or (b) U.S. person(s) who purchased the Securities in transactions
which did not require registration under the Act; or (ii) in the case of equity
securities, the Securities are owned by (x) non-U.S. person(s) (and such
person(s) are not acquiring the Securities for the account or benefit of U.S.
person(s)), or (y) U.S. person(s) who purchased the Securities in a transaction
which did not require registration under the Act. If this certification is
being delivered in connection with the exercise of warrants pursuant to Section
230.902(m) of Regulation S under the Act, then this is further to certify that,
except as set forth below, the Securities are being exercised by and on behalf
of non-U.S. person(s). As used in this paragraph, the term "U.S. person" has
the meaning given to it by Regulation S under the Act.
EXHIBIT A
-1-
<PAGE> 92
As used herein, "United States" or "U.S." means the United States of
America (including the States and District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $_________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification to any
interested party in such proceedings.
*Dated: _______________, 199__.
NAME OF PERSON MAKING CERTIFICATION
By:
-----------------------------------
- ---------------
* To be dated no earlier than the Certification Date.
EXHIBIT A
-2-
<PAGE> 93
EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN BY THE
EURO-CLEAR OPERATOR OR CEDEL S.A.
NEWFIELD EXPLORATION COMPANY, INC.
[Title of Securities]
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
to the effect set forth in the Indenture, dated as of __________, 199__, between
Newfield Exploration Company, Inc. and First Union National Bank as of the date
hereof, [ ] principal amount of the above-captioned Securities (i) is owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to United States Federal income taxation regardless of its source
("United States persons"), (ii) is owned by United States persons that are (A)
foreign branches of United States financial institutions (as defined in U.S.
Treasury Regulations Section 1.16512(c)(1)(v)) ("financial institutions")
purchasing for their own account or for resale, or (B) United States persons who
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (A) or (B), each such United
States financial institution has agreed, on its own behalf or through its agent,
that it will comply with the requirements of Section 165(1)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.1635(c)(2)(i)(D)(7)), and to the further effect that the
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section
230.903(c)(3) of Regulation S under the Securities Act of 1933, as amended,
then this is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have received in
writing, by tested telex or by electronic transmission, from our Member
Organizations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect set forth in the
Indenture.
EXHIBIT B
-1-
<PAGE> 94
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any
interest) any portion of the temporary global Security excepted in such
certifications and (ii) that as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of the
part submitted herewith for exchange (or, if relevant, exercise of any rights
or collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or would
be relevant, we irrevocably authorize you to produce this certification or a
copy hereof to any interested party in such proceedings.
Dated: ___________________, 199__.
(dated the Exchange Date or the Interest
Payment Date)
[Morgan Guaranty Trust Company of New
York, as operator of the Euro-clear
System]
or
[CEDEL S.A.]
By:
----------------------------------
EXHIBIT B
-2-
<PAGE> 1
EXHIBIT 4.11
CERTIFICATE OF TRUST
OF
NEWFIELD FINANCIAL TRUST I
THIS Certificate of Trust of Newfield Financial Trust I (the
"Trust"), dated as of August 28, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby is
Newfield Financial Trust I.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are First Union Trust Company, National Association, One Rodney Square, 920 King
Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written.
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as trustee of the Trust
By: /s/ EDWARD L. TRUITT, JR.
---------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
TERRY W. RATHERT, not in his individual capacity
but solely as trustee of the Trust
/s/ Terry W. Rathert
---------------------------------------
<PAGE> 1
EXHIBIT 4.12
TRUST AGREEMENT
OF
NEWFIELD FINANCIAL TRUST I
THIS TRUST AGREEMENT is made as of August 28, 1998 (this "Trust
Agreement"), by and among Newfield Exploration Company, a Delaware corporation,
as Depositor (the "Depositor"), and First Union Trust Company, National
Association, a national association, as trustee, and Terry W. Rathert, as
trustee (jointly, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Newfield Financial Trust
I" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
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 constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred or Capital Securities and Common Securities referred to therein. Prior
to the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of 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. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred or Capital Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Preferred or
Capital Securities of the Trust required to be filed pursuant to the 1933 Act,
and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
or Capital Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by the Depositor, to file with
the New York Stock Exchange or other exchange, or the National
<PAGE> 2
Association of Securities Dealers ("NASD"), and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred or Capital Securities of the Trust to be listed on the New York Stock
Exchange or such other exchange, or the NASD's Nasdaq National Market; (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 that shall be necessary or desirable to register the
Preferred or Capital Securities of the Trust 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 execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred or Capital
Securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the Preferred or Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees 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 New York
Stock Exchange or other exchange, NASD, or state securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust 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 of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
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. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby;
-2-
<PAGE> 3
provided, however, that the Depositor shall not be required to indemnify any
Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY, as
Depositor
By: /s/ TERRY W. RATHERT
---------------------------------------
Name: Terry W. Rathert
Title: Vice President -- Planning and
Administration and Secretary
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as trustee of the Trust
By: /s/ EDWARD L. TRUITT, JR.
---------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
TERRY W. RATHERT, not in his individual
capacity but solely as trustee of the Trust
/s/ Terry W. Rathert
---------------------------------------
-3-
<PAGE> 1
EXHIBIT 4.13
================================================================================
AMENDED AND RESTATED
TRUST AGREEMENT
AMONG
NEWFIELD EXPLORATION COMPANY
AS DEPOSITOR,
FIRST UNION NATIONAL BANK
AS PROPERTY TRUSTEE,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION
AS DELAWARE TRUSTEE,
AND
THE ADMINISTRATIVE TRUSTEES NAMED HEREIN
DATED AS OF __________ ___, ____
NEWFIELD FINANCIAL TRUST __
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE 1 DEFINED TERMS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 ESTABLISHMENT OF THE TRUST . . . . . . . . . . . . . . . . . . 12
SECTION 2.1. Name . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.2. Office of the Delaware Trustee; Principal Place of
Business . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 2.3. Organizational Expenses . . . . . . . . . . . . . . . . 12
SECTION 2.4. Issuance of the Preferred Securities . . . . . . . . . 12
SECTION 2.5. Subscription and Purchase of Debentures; Issuance of
the Common Securities . . . . . . . . . . . . . . . . . 12
SECTION 2.6. Declaration of Trust . . . . . . . . . . . . . . . . . 13
SECTION 2.7. Authorization to Enter into Certain Transactions . . . 13
SECTION 2.8. Assets of Trust . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.9. Title to Trust Property . . . . . . . . . . . . . . . . 17
ARTICLE 3 PAYMENT ACCOUNT . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.1. Payment Account . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE; CONVERSION . . . . . . . 18
SECTION 4.1. Distributions . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.2. Redemption . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 4.3. Conversion . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 4.4. Special Event Exchange or Redemption . . . . . . . . . 23
SECTION 4.5. Subordination of Common Securities . . . . . . . . . . 25
SECTION 4.6. Payment Procedures . . . . . . . . . . . . . . . . . . 25
SECTION 4.7. Tax Returns and Reports . . . . . . . . . . . . . . . . 26
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust . . . . . . 26
SECTION 4.9. Payments under Indenture . . . . . . . . . . . . . . . 26
ARTICLE 5 TRUST SECURITIES CERTIFICATES . . . . . . . . . . . . . . . . 26
SECTION 5.1. Initial Ownership . . . . . . . . . . . . . . . . . . . 26
SECTION 5.2. The Trust Securities Certificates . . . . . . . . . . . 26
SECTION 5.3. Delivery of Trust Securities Certificates . . . . . . . 27
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer . . . . . . . . . 27
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.6. Persons Deemed Securityholders . . . . . . . . . . . . 29
SECTION 5.7. Access to List of Securityholders' Names and Addresses 29
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C>
SECTION 5.8. Maintenance of Office or Agency . . . . . . . . . . . . 30
SECTION 5.9. Appointment of Paying Agent . . . . . . . . . . . . . . 30
SECTION 5.10. Ownership of Common Securities by Depositor . . . . . . 31
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate . . . . . . . . . . . . . . . . 31
SECTION 5.12. Notices to Clearing Agency . . . . . . . . . . . . . . 32
SECTION 5.13. Definitive Preferred Securities Certificates . . . . . 32
SECTION 5.14. Rights of Securityholders . . . . . . . . . . . . . . . 33
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING . . . . . . . . . . . 33
SECTION 6.1. Limitations on Voting Rights . . . . . . . . . . . . . 33
SECTION 6.2. Notice of Meetings . . . . . . . . . . . . . . . . . . 35
SECTION 6.3. Meetings of Preferred Securityholders . . . . . . . . . 35
SECTION 6.4. Voting Rights . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.5. Proxies, Etc. . . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.6. Securityholder Action by Written Consent . . . . . . . 36
SECTION 6.7. Record Date for Voting and Other Purposes . . . . . . . 36
SECTION 6.8. Acts of Securityholders . . . . . . . . . . . . . . . . 37
SECTION 6.9. Inspection of Records . . . . . . . . . . . . . . . . . 38
ARTICLE 7 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 38
SECTION 7.1. Representations and Warranties of the Property Trustee
and the Delaware Trustee . . . . . . . . . . . . . . . 38
SECTION 7.2. Representations and Warranties of Depositor . . . . . . 39
ARTICLE 8 THE TRUSTEES . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 8.1. Certain Duties and Responsibilities . . . . . . . . . . 39
SECTION 8.2. Notice of Defaults . . . . . . . . . . . . . . . . . . 41
SECTION 8.3. Certain Rights of Property Trustee . . . . . . . . . . 43
SECTION 8.4. Not Responsible for Recitals or Issuance of Securities 45
SECTION 8.5. May Hold Securities . . . . . . . . . . . . . . . . . . 45
SECTION 8.6. Compensation; Indemnity; Fees . . . . . . . . . . . . . 46
SECTION 8.7. Property Trustee Required; Eligibility of Trustees . . 46
SECTION 8.8. Conflicting Interests . . . . . . . . . . . . . . . . . 47
SECTION 8.9. Resignation and Removal; Appointment of Successor . . . 47
SECTION 8.10. Acceptance of Appointment by Successor . . . . . . . . 49
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.12. Preferential Collection of Claims Against Depositor
or Trust . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 8.13. Reports by Property Trustee . . . . . . . . . . . . . . 50
SECTION 8.14. Reports to the Property Trustee . . . . . . . . . . . . 51
SECTION 8.15. Evidence of Compliance with Conditions Precedent . . . 51
SECTION 8.16. Number of Trustees . . . . . . . . . . . . . . . . . . 51
SECTION 8.17. Delegation of Power . . . . . . . . . . . . . . . . . . 51
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 9 DISSOLUTION, LIQUIDATION AND MERGER . . . . . . . . . . . . . 52
SECTION 9.1. Dissolution upon Expiration Date . . . . . . . . . . 52
SECTION 9.2. Early Dissolution . . . . . . . . . . . . . . . . . . 52
SECTION 9.3. Termination. . . . . . . . . . . . . . . . . . . . 52
SECTION 9.4. Liquidation . . . . . . . . . . . . . . . . . . . . . 52
SECTION 9.5. Mergers, Consolidations, Amalgamations or
Replacements of the Trust . . . . . . . . . . . . . . 54
ARTICLE 10 MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 55
SECTION 10.1. Limitation of Rights of Securityholders . . . . . . . 55
SECTION 10.2. Amendment . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 10.3. Separability . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.4. Governing Law . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.5. Payments Due on Non-Business Day . . . . . . . . . . 57
SECTION 10.6. Successors . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.7. Headings . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.8. Reports, Notices and Demands . . . . . . . . . . . . 57
SECTION 10.9. Agreement Not to Petition . . . . . . . . . . . . . . 58
SECTION 10.10. Trust Indenture Act; Conflict with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.11. Acceptance of Terms of Trust Agreement, Guarantee
and Indenture . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.12. Counterparts . . . . . . . . . . . . . . . . . . . . 59
</TABLE>
EXHIBIT A -- Certificate of Trust of Newfield Financial Trust __
EXHIBIT B -- Form of Common Securities of Newfield Financial Trust __
EXHIBIT C -- Form of Preferred Securities of Newfield Financial Trust __
EXHIBIT D -- Notice of Conversion
-iii-
<PAGE> 5
NEWFIELD FINANCIAL TRUST __*
Certain Sections of this Trust Agreement
relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
<S> <C> <C>
Section 310 (a)(1) . . . . . . . . . . . . . . . . 8.7
(a)(2) . . . . . . . . . . . . . . . . 8.7
(a)(3) . . . . . . . . . . . . . . . . Not Applicable
(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)
(c) . . . . . . . . . . . . . . . . 10.8
(d) . . . . . . . . . . . . . . . . 8.13(c)
(a)(4) . . . . . . . . . . . . . . . . 8.13(b)
(b) . . . . . . . . . . . . . . . . 8.13(b)
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) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(A) . . . . . . . . . . . . . . . . Not Applicable
(a)(1)(B) . . . . . . . . . . . . . . . . Not Applicable
(a)(2) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . 6.7
Section 317 (a)(1) . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . 5.9
Section 318 (a) . . . . . . . . . . . . . . . . 10.10
</TABLE>
- --------------------
* Note: This reconciliation and tie sheet shall not, for any purpose, be
deemed to be a part of the Trust Agreement.
-iv-
<PAGE> 6
AMENDED AND RESTATED TRUST AGREEMENT, dated as of _________ ___,
____ among (i) Newfield Exploration Company, a Delaware corporation (including
any successors or assigns, the "Depositor"), (ii) First Union National Bank, a
national banking association, 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) First Union Trust Company, National
Association, a national association with its place of business in the State of
Delaware, a corporation duly organized and existing under the laws of the State
of Delaware, as Delaware trustee (in such capacity, the "Delaware Trustee"),
(iv) David A. Trice, an individual, Terry W. Rathert, an individual, and James
P. Ulm, II, an individual, each of whose address is c/o Newfield Exploration
Company, 363 N. Sam Houston Parkway E., Suite 2020, Houston, Texas 77060,
(each, an "Administrative Trustee" and, collectively, the "Administrative
Trustees" and, collectively with the Property Trustee and the Delaware Trustee,
the "Trustees") and (iv) the several Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Depositor and certain of the Trustees have
heretofore duly declared and created a business trust pursuant to the Delaware
Business Trust Act by the entering into of that certain Trust Agreement, dated
as of August 28, 1998 (the "Original Trust Agreement"), 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 August 28, 1998, attached as
Exhibit A, for the sole purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in the Debentures (as defined herein); and
WHEREAS, the parties hereto desire to amend and restate the
Original Trust Agreement 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 by the Trust pursuant to the Underwriting Agreement
(each 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 parties and for the benefit of the Holders of the Preferred Securities,
hereby amends and restates the Original Trust Agreement in its entirety and
agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1. Definitions. For all purposes of this Trust
Agreement, except as otherwise expressly provided or unless the context
otherwise requires:
-1-
<PAGE> 7
(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 Trust Agreement; and
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" 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 Sums (as defined in the Indenture) paid by the
Depositor on the Debentures.
"Administrative Trustee" means each of David A. Trice, Terry W.
Rathert, and James P. Ulm, II each solely in his capacity as Administrative
Trustee of the Trust 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 be deemed not 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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of [Euroclear and Cedel, and of] the Clearing Agency for
such security, in each case 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 Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
-2-
<PAGE> 8
(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.
"Certificate Depository 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 as the same may be amended and supplemented from time to time.
"Certificated Preferred Security " means a Preferred Security in
registered, certificated form.
-3-
<PAGE> 9
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. 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 (as defined in
the Underwriting Agreement), which date is also the date of execution and
delivery of this Trust 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 $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Common Stock" means common stock, par value $.01 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 office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall be located at 230 South Tryon Street, Ninth
Floor, Charlotte, North Carolina 28288-1179 or such other address as the
Trustee may give notice thereof to the Company, Attention: Corporate Trustee
Administration.
"Current Market Price", with respect to Common Stock, means for
any day 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 Composite 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
-4-
<PAGE> 10
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 First Union National Bank, a national
banking association, as trustee under the Indenture.
"Debentures" means all of the Depositor's _____% junior
convertible subordinated debentures issued pursuant to the Indenture.
"Definitive Preferred Securities Certificates" means either or
both (as the context requires) of (x) Preferred Securities Certificates issued
in certificated, fully registered form as provided in Section 5.11(b) and (y)
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
Trustee" in the preamble to this Trust Agreement solely in its capacity as
Delaware Trustee of the Trust 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
Trust Agreement.
"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.
-5-
<PAGE> 11
"Early Dissolution 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" means a Preferred Security that is
registered in the Securities Register in the name of a Clearing Agency or a
nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered
by the Depositor and First Union National Bank, a national banking association,
as guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.
"Indenture" means the Junior Convertible Subordinated 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 "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 Trust Agreement.
"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 $50 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
dissolution and liquidation of the Trust pursuant to Section 9.4(a).
-6-
<PAGE> 12
"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
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred 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
an Assistant 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 Trust 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 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.
"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 acceptable to the Property
Trustee. Any Opinion of Counsel delivered with respect to compliance with a
condition or covenant provided for in this Trust Agreement 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;
-7-
<PAGE> 13
(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 with respect to the Preferred
Securities (except as set forth below with respect to redemption upon the
occurrence of a Tax Event), the following percentages of the Liquidation
Amounts thereof, plus 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 indicated:
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C>
</TABLE>
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 $50 per
Trust Security and all accumulated and unpaid Distributions, if any, to the
date fixed for redemption.
"Original Trust Agreement" has the meaning specified in the
recitals to this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means,
as of the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities
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 Trust Agreement;
(c) Trust Securities which have been exchanged for Debentures
pursuant to Section 4.4; and
-8-
<PAGE> 14
(d) 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, Trust
Securities owned by the Depositor, any Trustee or any Affiliate of the
Depositor or any Trustee shall be disregarded and deemed not to be Outstanding,
except that (a) in determining whether any Trustee shall be fully protected in
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Trust Securities that a Responsible Officer of the
Property Trustee or the Delaware Trustee, or an individual Administrative
Trustee, as the case may be, 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
Trustees and/or any such Affiliate. Trust 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 Trust Securities and that the pledgee is not the Depositor
or any Affiliate of the Depositor.
"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.
"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 $50 and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
-9-
<PAGE> 15
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust 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, $50
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.
"Responsible Officer" means any officer assigned to the Corporate
Trust Office, including any managing director, vice president, assistant vice
president, assistant treasurer, assistant secretary or any other officer of the
Property Trustee customarily performing functions similar to those performed by
any of the above designated officers and having direct responsibility for the
administration of this Trust Agreement, and also, with respect to a particular
matter, any other officer, to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security is registered in the Securities Register; any such Person being a
beneficial owner within the meaning of the Delaware Business Trust Act.
"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.
"Super Majority" has the meaning specified in Section 8.2.
"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
-10-
<PAGE> 16
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 Trust Agreement and does not pertain to the
use of the proceeds of the issuance of the Debentures, there is more 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 State
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 thereof, 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 Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust
Agreement, 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 Trust Agreement any such modification,
amendment or supplement, the provisions of the Trust Indenture Act that are
deemed to be a part of and govern this Trust Agreement and any such
modification, amendment or supplement, respectively.
"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 Trust Agreement 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.
"Underwriters" with respect to the Preferred Securities, means
__________________.
-11-
<PAGE> 17
"Underwriting Agreement" means the Underwriting Agreement dated
as of ________ __, ____ among the Trust, the Depositor and the Underwriters
named therein.
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1. Name. The Trust continued hereby shall be known as
"Newfield Financial Trust I", as such name may be modified from time to time by
the 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 One
Rodney Square, 920 King Street, Wilmington, Delaware 19801, Attention:
Corporate Trustee Administration Department, 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 363 N. Sam Houston Parkway E., Suite 2020, Houston, Texas 77060.
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. The
Depositor on behalf of the Trust has executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, an Administrative Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters 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 Trust Agreement, the Administrative Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Depositor 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 Common Securities
Certificates registered in the name of the Depositor, in an aggregate amount of
__________ Common Securities having an aggregate Liquidation Amount of
$__________ against
-12-
<PAGE> 18
receipt of the aggregate purchase price of such Common Securities from the
Depositor of the sum 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 Trust Agreement 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,
mortgage or 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 Trust Agreement. 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:
(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 and any other date Preferred Securities and
Common Securities are sold pursuant to the over-allotment option
granted to the Underwriters named in the Underwriting Agreement,
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 enter into, and to execute,
deliver and perform on behalf of the Trust, the Certificate
Depository Agreement and such other
-13-
<PAGE> 19
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, and
under state securities or blue sky laws, and the qualification of
this Trust Agreement 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, if any, 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 Trust
Agreement;
(F) to the extent provided in this Trust Agreement, 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 required by applicable law, 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 Trust Agreement; and
(H) to take any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
1940 Act;
(ii) causing the Trust to be classified for
United States Federal income tax purposes as a grantor
trust; and
(iii) 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 except as
otherwise provided in Section 10.2(a).
-14-
<PAGE> 20
(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;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debentures;
(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 Trust
Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement, the
winding up of the affairs of and liquidation of the Trust;
(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 Trust Agreement 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 Trust Agreement 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
-15-
<PAGE> 21
the Debentures (rather, the Trustees shall distribute all such proceeds to the
Securityholders pursuant to the terms of this Trust Agreement and the Trust
Securities), acquire any investments or engage in any activities not authorized
by this Trust Agreement, (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 Trust Agreement, 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 furtherance of the following prior
to the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to file by the Trust with the Commission and to execute on
behalf of the Trust one or more registration statements on the
appropriate form in relation to the Preferred Securities, including any
amendments thereto;
(ii) to determine the States and foreign jurisdictions in which
to take appropriate action to qualify or register for resale 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;
(iii) 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 (it
being understood that neither the Trust nor the Depositor has any
obligation under the Indenture, the Underwriting Agreement or the Trust
Agreement to register any Trust Securities under the Securities Exchange
Act of 1934, as amended or to list any Trust Securities on any
securities exchange);
(iv) to negotiate, and to execute and deliver, on behalf of the
Trust, the Underwriting Agreement;
-16-
<PAGE> 22
(v) to list the Preferred Securities upon such securities
exchange or exchanges, if any, as shall be determined by the Depositor
and the preparation and filing of all periodic and other reports and
other documents pursuant to the foregoing; and
(vi) any other actions necessary or incidental to carrying 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 Trust Agreement, 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 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 Trust
Agreement. The Securityholders 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 Trust Agreement. 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
-17-
<PAGE> 23
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 of any Trust Securities, or the most recent Distribution Date (as
defined herein) and, except in the event that the Depositor exercises its right
to defer the payment of interest 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 month, Distributions shall
reflect interest on Debentures computed on the basis of the actual number of
elapsed days based on a 360-day year. The amount of Distributions payable for
any period shall include the Additional Amounts, 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 redeemed by
the Depositor, including pursuant to Section 4.4, at the Optional
-18-
<PAGE> 24
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. The Trust may not redeem fewer than all the Outstanding
Trust Securities unless all accrued and unpaid Distributions have been paid on
all Trust Securities for all quarterly Distribution periods terminating on or
prior to the date of redemption.
(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 record date for the determination of Holders entitled
to receive payment of the Redemption Price or Optional Redemption Price,
as the case may be, as provided in Section 4.2(d);
(iv) the CUSIP number;
(v) 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;
(vi) the Conversion Price and 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;
(vii) 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
(viii) 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
-19-
<PAGE> 25
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.
(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 definitive 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 (i) the right of such Securityholders to receive the Redemption Price or
the Optional Redemption Price, as the case may be, but without interest, and
(ii) the right to convert such Preferred Securities into Common Stock in the
manner provided in Section 4.3 through the close of business on the Redemption
Date; 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),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case,
with the same force and effect as if made on such date. Payment of the
Redemption Price or the Optional Redemption Price, as the case may be, shall be
made to the Holders of such Trust Securities 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) preceding
such Redemption 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 fair and appropriate and which may provide for the
selection for redemption of portions (equal to $50 or an integral multiple of
$50 in excess thereof)
-20-
<PAGE> 26
of the Liquidation Amount of the Preferred Securities. The Property Trustee
shall promptly notify the Securities Registrar and the Conversion Agent in
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 Trust Agreement,
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 in part, the Trust shall not be required to (i)
issue, register the transfer of or exchange of 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 in 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 of 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.
(f) In the event of any redemption, the Trust shall not be
required to issue, register the transfer of or register the exchange of any
Preferred Security during a period beginning at the opening of business 15 days
before any Redemption Date and ending at the close of business on such
Redemption Date.
SECTION 4.3. Conversion. The Holders of Trust Securities,
subject to the limitations set forth in this Section, shall have the right, 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:
(i) 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 having a principal amount equal to the
aggregate 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 approximately $_____ per share of Common Stock), subject to certain
adjustments set forth in the Indenture (as so adjusted, "Conversion
Price").
(ii) 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 (i) 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 (ii) direct the Conversion Agent
-21-
<PAGE> 27
(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 in writing 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
written 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 on or 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 submitted for conversion prior to the expiration of
conversion rights as provided in Section 4.3(iii) 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 Conversion Date. As promptly as
practicable on or after the Conversion Date, the Depositor shall issue
and deliver 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 directed by the Holder in the notice of
conversion and the Conversion Agent shall distribute such certificate or
certificates to such Person or Persons.
(iii) The conversion rights of holders of the Debentures and the
corresponding conversion rights of Holders of Trust Securities shall
expire at the close of business on the date set for redemption of the
Trust Securities upon the mandatory or optional redemption of the
Debentures.
(iv) Each Holder of a Trust Security by its acceptance thereof
initially appoints First Union National Bank 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
-22-
<PAGE> 28
authorized (i) to 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) to 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.
(v) 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.
(vi) 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 Trust Agreement or otherwise required
of the Property Trustee 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 direct
the Conversion Agent to exchange 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 Amounts) 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 (as defined in the
Indenture) 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, 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) _______
__, ____. 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 the Optional Redemption
Price applicable in the event of a redemption upon the occurrence of a Tax
Event 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
-23-
<PAGE> 29
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 Amounts) 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; (D)
the record date for the determination of Holders of Trust Securities to be
exchanged as provided in Section 4.4(g); and (E) the identity of the Conversion
Agent, if any, and 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 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 or its nominee, as the record Holder of the Preferred Securities, will
exchange through the Conversion Agent the Global Certificate representing the
Preferred Securities to be exchanged for a registered Global Certificate or
certificates representing the
-24-
<PAGE> 30
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 Conversion Agent 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 Trust Agreement
pursuant to Section 10.11 of this Trust 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 Securities or as
set forth in this Trust Agreement 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 that 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 Amounts, 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 Amounts, 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 Amounts, 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 Amounts,
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 Depository Agreement on the applicable
Distribution Dates.
-25-
<PAGE> 31
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 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 furnish (or cause to be prepared and furnished) to each
Securityholder 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 the
Depositor with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The 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) 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 shall be reduced by the amount
of any corresponding payment such Holder (or any Owner with respect thereto)
has directly received pursuant to Section 5.8 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 creation 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 $50
Liquidation Amount and integral multiples of $50 in excess thereof, and the
Common Securities Certificates shall be issued in denominations of $50
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. Preferred Securities initially will be represented by one or more
certificates in registered, global form (the "Global Certificate"). The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Administrative Trustee and authenticated by
the Property Trustee. Trust Securities
-26-
<PAGE> 32
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 Trust Agreement, 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, any Senior Vice President or any Vice President,
Treasurer or Assistant Treasurer or Controller without further corporate action
by the Depositor, in authorized denominations.
A Trust Security 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 Trust
Security Certificate has been authenticated under this Trust Agreement. Upon a
written order of the Trust signed by one Administrative Trustee, the Property
Trustee shall authenticate the Trust Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Trust Security
Certificates. An authenticating agent may authenticate Trust Security
Certificates whenever the Property Trustee may do so. Each reference in this
Trust Agreement 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 Trust Securities.
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer. (a) The Securities Registrar
("Securities Registrar") shall keep or cause to be kept, at the office or
agency maintained pursuant to Section 5.8, a Securities Register ("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.
Subject to the other provisions of this Trust Agreement regarding
restrictions on transfer, upon surrender for registration of transfer of any
Preferred Security at an office or agency of the Securities Registrar
designated pursuant to Section 5.8 for such purpose, an Administrative Trustee
shall execute on behalf of the Trust by manual or facsimile signature, and the
Property Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one
-27-
<PAGE> 33
or more new Preferred Securities of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as may be
required by this Trust Agreement.
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,
an Administrative Trustee shall execute on behalf of the Trust by manual or
facsimile signature, 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 entitled to the same benefits
under this Trust Agreement, 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 his 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.
(b) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Trust Agreement or the Preferred Securities, transfers
and exchanges of Preferred Securities and beneficial interests in a Global
Certificate of the kind specified in this Section 5.4(b) shall be made only in
accordance with this Section 5.4(b).
(i) Non-Global Certificate to Global Certificate. If the
Holder of a Preferred Security (other than a Global Certificate) wishes
at any time to transfer all or any portion of such Preferred Security to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in the Global Certificate, such transfer may be effected only
in accordance with the provisions of this Clause (b)(i) and Clause
(b)(ii) below and subject to the Applicable Procedures. Upon receipt by
the Property Trustee, as Securities Registrar, of (A) such Security as
provided in Section 5.4(a) and written instructions satisfactory to the
Property Trustee directing that a beneficial interest in a Global
Certificate in a specified Liquidation Amount (or number of Preferred
Securities) not greater than the amount of such Preferred Security be
credited to a specified participant's account and (B) a Preferred
Securities Certificate satisfactory to the Property Trustee and duly
executed by such Holder or his attorney duly authorized in writing, then
the Property Trustee, as Securities Registrar but subject to Clause
(b)(ii) below, shall cancel such Preferred Security Certificate (and
issue
-28-
<PAGE> 34
a new Preferred Security Certificate in respect of any untransferred
portion thereof) as provided in Section 5.4(a) and increase the
Liquidation Amount of (or number of Preferred Securities represented by)
the Global Certificate, as the case may be, by the specified Liquidation
Amount (or number of Preferred Securities) as provided in Section
5.11(b).
(ii) Non-Global Certificate to Non-Global Certificate. A
Preferred Security that is not a Global Certificate may be transferred,
in whole or in part, to a Person who takes delivery in the form of
another Preferred Security that is not a Global Certificate as provided
in Section 5.11.
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 bona fide purchaser, the Administrative Trustees, or any one of
them, on behalf of the Trust shall execute and make available for
authentication 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
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 Trust Agreement) 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, promptly after receipt by the Depositor of a
written request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, 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
-29-
<PAGE> 35
communicate with other Securityholders with respect to their rights under this
Trust Agreement 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
shall not 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 Trustee Administration
Department, 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 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, 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 Trust Agreement 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. 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
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.
-30-
<PAGE> 36
SECTION 5.10. Ownership of Common Securities by Depositor. On
the Closing Date, the Depositor shall acquire beneficial and record ownership
of the Common Securities. The Depositor has covenanted in the Indenture to
maintain directly or indirectly 100% ownership of the Common Securities,
provided that any permitted successor of the Company under the Indenture may
succeed to the Company's ownership of the Common Securities. To the fullest
extent permitted by law, any attempted transfer of the Common Securities in
violation of that covenant shall be void. The Administrative Trustees shall
cause each Common Securities Certificate to contain a legend stating, "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY NEWFIELD
EXPLORATION COMPANY OR TO CERTAIN SUCCESSORS OF NEWFIELD EXPLORATION COMPANY."
SECTION 5.11. Global Securities; Non-Global Securities; Common
Securities Certificate. (a) Each Global Certificate authenticated under this
Trust Agreement shall be registered in the name of the Clearing Agency
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 Trust Agreement.
(b) If a Global Certificate is to be exchanged for
Certificated Preferred Securities or canceled 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 principal amount thereof
(or number of Preferred Securities represented thereby) 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 (or number of securities
represented by) 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, an Administrative Trustee shall execute on
behalf of the Trust by manual or facsimile signature, and 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 written 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 promptly make 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 conclusively rely upon
any order, direction or request of the Clearing Agency or its authorized
-31-
<PAGE> 37
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.
(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 this Trust Agreement 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 Trust Agreement
or the Preferred Securities.
(e) A single Common Securities Certificate representing the
Common Securities shall initially 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 Trust
Agreement, unless and until Definitive Preferred Securities Certificates shall
have been issued to Owners pursuant to Section 5.13, the Trustees 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 Trust Agreement, 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 Trust and 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 fail to
appoint a successor Clearing Agency, (ii) the Administrative Trustees, on
behalf of the Trust, and the Depositor, at their option, notify the Property
Trustee in writing that they elect 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).
-32-
<PAGE> 38
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 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
Trust Agreement. 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 undivided
beneficial interests in the assets of 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 Section 8.2 hereof, if an Event of Default with
respect to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the occurrence of
an Event of Default with respect to the Preferred Securities and ending on the
date when such Event of Default is cured, waived or otherwise eliminated, or
(y) any period not described in either the preceding sentence or the preceding
clause (x), the provisions of Section 6.1(b)(i) shall apply.
(i) The Holders of a majority in aggregate Liquidation Amount
of the 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 exercise any trust or power conferred upon
the Property Trustee under the Trust Agreement, including the right to
direct the Property Trustee to exercise the remedies available to it as
a holder of the Debentures but excluding the right to direct the
Property Trustee to consent to an amendment, modification or termination
of the Indenture (which shall be as provided below). So long as any
Debentures are held by the Property Trustee, the Trustees shall not (A)
direct the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust or
power conferred on the Debenture Trustee with respect to such
Debentures, (B) waive any past default which is waivable under Section
5.13 of the
-33-
<PAGE> 39
Indenture, (C) exercise any right to rescind or annul a declaration that
the principal of all the Debentures shall be due and payable or (D)
consent to any amendment, modification or termination of the Indenture
or the Debentures, where such consent shall be required, without, in
each case, obtaining the prior approval of the Holders of a majority in
aggregate Liquidation Amount of all Outstanding Preferred Securities
(except in the case of clause (D), which consent, in the event that no
Event of Default shall occur and be continuing, shall be of the Holders
of a majority in aggregate Liquidation Amount of all Trust Securities,
voting together as a single class); provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of
Preferred Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Securities, except by a subsequent vote of the Holders of the
Preferred Securities. The Property Trustee shall notify all Holders of
record of the Preferred Securities of any notice of default received
from the Debenture Trustee with respect to the Debentures. In addition
to obtaining the foregoing approvals of the Holders of the Preferred
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only
after the Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated the Holders of a majority in
aggregate Liquidation Amount of the Common 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 exercise any
trust or power conferred upon the Property Trustee under the Trust
Agreement, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debentures but
excluding the right to direct the Property Trustee to consent to an
amendment, modification or termination of the Indenture (which shall be
as provided below). So long as any Debentures are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture
Trustee, or executing any trust or power conferred on the Debenture
Trustee with respect to such Debentures, (B) waive any past default
which is waivable under Section 5.13 of the Indenture, (C) exercise any
right to rescind or annul a declaration that the principal of all the
Debentures shall be due and payable or (D) consent to any amendment,
modification or termination of the Indenture or the Debentures, where
such consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a majority in aggregate Liquidation
Amount of all Common Securities (except in the case of clause (D), which
consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of a majority in aggregate
Liquidation Amount of all Trust Securities, voting together as a single
class); provided, however, that where a consent under the Indenture
would require the consent of each holder of Debentures affected thereby,
no such consent
-34-
<PAGE> 40
shall be given by the Property Trustee without the prior written consent
of each Holder of Common Securities. The Trustees shall not revoke any
action previously authorized or approved by a vote of the Holders of the
Common Securities, except by a subsequent vote of the Holders of the
Common Securities. The Property Trustee shall notify all Holders of
record of the Common Securities of any notice of default received from
the Debenture Trustee with respect to the Debentures. In addition to
obtaining the foregoing approvals of the Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Depositor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership for
United States Federal income tax purposes on account of such action.
(iii) The provisions of this Section 6.1(b) and Section 6.1(a)
of this Trust Agreement shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act, and such Section 316(a)(1)(A) is hereby expressly
excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act.
(c) If any proposed amendment to the Trust Agreement 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 Trust
Agreement, 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.
-35-
<PAGE> 41
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 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 Trust Agreement requires a different number of
affirmative votes.
SECTION 6.4. Voting Rights. Securityholders shall be entitled
to one vote for each $50 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
Trustees or any Affiliate of any 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 a majority of all Outstanding Trust
Securities (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 Trust Agreement) 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 Trust Agreement, 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 date for the
determination of the identity of the Securityholders of record for such
purposes.
-36-
<PAGE> 42
SECTION 6.8. Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Securityholders 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 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 Trust Agreement 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 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 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 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
-37-
<PAGE> 43
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 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.
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 national banking association
duly organized, validly existing and in good standing under the laws of the
United States of America;
(b) the Delaware Trustee is a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America;
(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 Trust Agreement and has taken all necessary action
to authorize the execution, delivery and performance by it of this Trust
Agreement;
(d) this Trust Agreement has been duly authorized, executed
and delivered by each of the Property Trustee and the Delaware Trustee and
constitutes the valid and legally binding agreement of the Property Trustee and
the Delaware Trustee enforceable against it in accordance with its terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
-38-
<PAGE> 44
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and
(e) the execution, delivery and performance by each of the
Property Trustee and the Delaware Trustee of this Trust Agreement have been
duly authorized by all necessary corporate or other action on the part of the
Property Trustee and the Delaware Trustee and do not require any approval of
stockholders of the Property Trustee or the Delaware Trustee and such
execution, delivery and performance will not (i) violate either of the Property
Trustee's or the Delaware Trustee's charter or by-laws or (ii) violate any law,
governmental rule or regulation of the United States or the State of Delaware,
as the case may be, governing the banking, corporate, or trust powers of the
Property Trustee or the Delaware Trustee (as appropriate in context) or any
order, judgment or decree applicable to the Property Trustee or the Delaware
Trustee.
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 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 Trust
Agreement and the Securityholders will be, as of such date, entitled to the
benefits of this Trust Agreement; 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 Trust Agreement.
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 Trust
Agreement 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 Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee
or the Delaware 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 Trust Agreement and
the Trust Indenture Act, and use the same degree of care and skill in its
exercise, as a prudent individual would exercise or use under the circumstances
in the conduct of his or her own affairs. Notwithstanding the foregoing, no
provision of this Trust Agreement shall require the Trustees to expend or risk
their own funds or otherwise
-39-
<PAGE> 45
incur any financial liability in the performance of any of their duties
hereunder, or in the exercise of any of their rights or powers. Whether or not
therein expressly so provided, every provision of this Trust Agreement 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
Trust Agreement shall be construed to release the Trustees from liability for
their own grossly negligent action, their own grossly negligent failure to act,
or their own willful misconduct. To the extent that, at law or in equity, a
Trustee has duties (including fiduciary duties) and liabilities relating
thereto to the Trust or to the Securityholders, such Trustee shall not be
liable to the Trust or to any Securityholder for such Trustee's good faith
reliance on the provisions of this Trust Agreement. The provisions of this
Trust Agreement, to the extent that they restrict the duties and liabilities of
the 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 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 shall 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 Trust Agreement
or, in the case of the Property Trustee, in the Trust Indenture Act.
(c) No provision of this Trust Agreement 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 the Holders of a majority in aggregate
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 Trust Agreement;
(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 as fiduciary assets,
subject to the protections and limitations on liability afforded to the
Property Trustee under this Trust Agreement and the Trust Indenture Act;
-40-
<PAGE> 46
(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;
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Administrative Trustees or the
Depositor with their respective duties under this Trust Agreement, nor
shall the Property Trustee be liable for the default or misconduct of
the Administrative Trustees or the Depositor; and
(vi) the Property Trustee shall have no duty or liability with
respect to the value, genuineness, existence or sufficiency of the
Debentures or the payment of any taxes or assessments thereon or in
connection therewith.
SECTION 8.2. Notice of Defaults. (a) Within ten days after the
occurrence of any Event of Default actually known to a Responsible Officer of
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 fully
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 its 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 past 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 this Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority in
principal amount of the holders of the Debentures, including the consent
or vote of all such holders, (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Trust Agreement may only be
waived by the vote of the Holders of the same proportion in
-41-
<PAGE> 47
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
Trust Agreement 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 Trust Agreement,
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 Trust Agreement 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 past 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 this Trust Agreement 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 this Trust Agreement as provided
below in this Section 8.2(d), the Event of Default under this Trust
Agreement 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
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 Trust Agreement and the Preferred
Securities, as permitted by the Trust Indenture Act.
-42-
<PAGE> 48
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 Trust Agreement, 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 an 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 Trust
Agreement. 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 Trust
Agreement and the Preferred Securities, as permitted by the Trust Indenture
Act.
SECTION 8.3. Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be
fully protected in acting or refraining from acting in good faith upon any
resolution, Opinion of Counsel, certificate, written representation of a Holder
or transferee such as of a certificate presented for transfer, 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 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 Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement 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 Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, 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 Trust Agreement 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 Trust Agreement shall be
sufficiently evidenced by an Officers' Certificate;
-43-
<PAGE> 49
(d) whenever in the administration of this Trust Agreement,
the 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 conclusively 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
choice at the Depositor's expense (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 to
seek instructions concerning the administration of this Trust Agreement 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 Trust Agreement at
the request or direction of any of the Securityholders pursuant to this Trust
Agreement, unless such Securityholders shall have offered to the Property
Trustee reasonable security or indemnity satisfactory to it against the costs,
expenses (including attorneys' fees and expenses and the expenses of the
Property Trustee's agents, custodians or nominees) 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, but the Property Trustee may make such further inquiry or
investigation into such facts or custodian or nominee 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, custodians or nominees, attorneys or an Affiliate, provided
that the Property Trustee shall not be responsible for the negligence or
recklessness on the part of any agent, attorney, custodian or nominee appointed
by it with due care hereunder;
(j) whenever in the administration of this Trust Agreement the
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
-44-
<PAGE> 50
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 fully protected in conclusively relying on or acting in accordance
with such instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement;
(l) the Property Trustee shall not be liable for any action
taken, suffered, or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Trust Agreement;
(m) in the event that the Property Trustee is also acting as a
Paying Agent, Conversion Agent, and/or Securities Registrar hereunder, the
rights and protections afforded to the Property Trustee pursuant to this
Article 8 shall also be afforded to such Paying Agent, Conversion Agent, and/or
Securities Registrar;
(n) the permissive rights of the Property Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the Property
Trustee shall not be answerable for other than its grossly negligent action,
grossly negligent omission or its willful misconduct; and
(o) the Property Trustee shall not be charged with knowledge
of any Event of Default hereunder (other than an Event of Default under Section
5.1(a) or 5.1(b) of the Indenture if the Property Trustee is also the Paying
Agent with respect to the Securities) or the existence of any Subsidiary of the
Company unless the Property Trustee shall have received notice thereof in
accordance with Section 10.8 hereof from the Company or a Holder.
No provision of this Trust Agreement 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
-45-
<PAGE> 51
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 reasonable
compensation for all services rendered by them hereunder (which compensation
shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(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 Trust Agreement (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;
(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, dissolution or termination of the Trust or in connection with the
administration 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 Trust Agreement, 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 negligence or
willful misconduct 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.
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
-46-
<PAGE> 52
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.
(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 either be (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 Trust Agreement.
SECTION 8.9. Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b) and 8.9(c), Trustees (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 Trust 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.
(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
-47-
<PAGE> 53
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:
(a) 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 Depositor and the resigning Property Trustee; or
(b) until the assets of the Trust have been completely
liquidated and the proceeds thereof distributed to the Holders of
the Securities;
(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; and
(iii) no appointment of a successor Property Trustee or Delaware
Trustee shall be effective until all fees, charges, and expenses of the
retiring Property Trustee or retiring Delaware Trustee, as the case may
be, have been paid.
(e) The Holders of the Common Securities shall use their best
efforts to promptly 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 and prescribe, 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.
-48-
<PAGE> 54
(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 Trust Agreement, in the event any Administrative Trustee or a 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 or termination of this Trust
Agreement.
SECTION 8.10. Acceptance of Appointment by Successor. 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 (a) 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 (b) shall add to or change any of the provisions of this
Trust Agreement as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Relevant Trustee, it
being understood that nothing herein or in such amendment shall constitute such
Relevant Trustees co-trustees 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, an
Administrative Trustee on behalf of 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.
-49-
<PAGE> 55
SECTION 8.11. Merger, Conversion, Consolidation or Succession to
Business. Any Person 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 Person 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 Person shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto.
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 December 31 of each
year commencing with December 31, 1998 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 December 31 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 Trust Agreement during the twelve-
month period (or, in the case of the initial report, the period since
the Closing Date) ending with such December 31 or, if the Property
Trustee has not complied in any material respects with such obligations,
a description of such noncompliance;
(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; and
(iv) such other information as is required by Section 313(a) of
the Trust Indenture Act.
(b) In addition, the Property Trustee shall transmit to
Securityholders such reports concerning the Property Trustee and its actions
under this Trust Agreement as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
-50-
<PAGE> 56
(c) A copy of such report shall, at the time of such
transmissions to 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 are 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 Trust 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) 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 five, 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 dissolve, terminate or 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 Trust Agreement.
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 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
-51-
<PAGE> 57
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.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve on _______________ (the
"Expiration Date").
SECTION 9.2. Early Dissolution. The first to occur of any of
the following events is an "Early Dissolution 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 (i) to 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 are 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) to redeem all or some of the Trust
Securities pursuant to Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust
Securities;
(d) an order for dissolution of the Trust shall have been
entered by a court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the
Depositor at any time (which direction is optional and wholly within the
discretion of the Depositor) of its intention to dissolve 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 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; and (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.
SECTION 9.4. Liquidation. (a) If an Early Dissolution Event
specified in clause (a), (b), (d) or (e) of Section 9.2 occurs or upon the
Expiration Date, the Trust shall be liquidated by the Trustees as expeditiously
as the Trustees determine to be possible by distributing, after
-52-
<PAGE> 58
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(d). 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(d) 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(d) 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 for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date and, unless the Property Trustee determines otherwise, shall be the date
which is the fifteenth day (whether or not a Business Day) next preceding 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
wound-up or terminated, by the Property Trustee in such manner as the Property
Trustee determines, and an
-53-
<PAGE> 59
Administrative Trustee shall prepare, execute and file the certificate of
cancellation with the Secretary of State of the State of Delaware. In such
event, 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 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 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 or
Replacements of the Trust. The Trust may not merge with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, except pursuant to this
Section 9.5 or Section 9.4. 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, convert into, consolidate, amalgamate, 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, conversion, amalgamation, 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, conversion, amalgamation,
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), (vi) such
successor entity has a purpose substantially identical to that of the Trust,
(vii) prior to such merger, consolidation, conversion, amalgamation,
replacement, conveyance, transfer or lease the Depositor has received an
Opinion of Counsel to the effect that (a) such merger, consolidation,
conversion, amalgamation, 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
-54-
<PAGE> 60
material respect (other than with respect to any dilution of the Holder's
interest in the new entity), (b) following such merger, consolidation,
conversion, amalgamation, 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 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,
directly or indirectly, 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,
convert into, amalgamate, 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, convert into,
amalgamate, merge with or into, or replace it if such consolidation,
amalgamation, 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. Other
than as set forth in Section 9.1, the death, incapacity, dissolution,
bankruptcy or termination of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to dissolve the Trust or
terminate this Trust Agreement, 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 Trust Agreement 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
Trust Agreement, which shall not be inconsistent with the other provisions of
this Trust Agreement, (ii) to modify, eliminate or add to any provisions of
this Trust Agreement 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 comply with the
requirements of the Commission in order to effect or maintain the qualification
of this Trust Agreement 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 such amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.
-55-
<PAGE> 61
(b) Except as provided in Section 10.2(c) hereof, any
provision of this Trust Agreement 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 Trustee's
status as a grantor trust for United States Federal income tax purposes or the
Trust's exemption from the status of an "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 Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
Trust Agreement 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; and
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 Trust
Agreement, no Trustee shall enter into or consent to any amendment to this
Trust Agreement which would cause the Trust to fail or cease to qualify for the
exemption from the status of an "investment company" under the 1940 Act or be
classified as other than a grantor trust for United States Federal income tax
purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Depositor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Depositor.
(f) In the event that any amendment to this Trust Agreement 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 Trust Agreement which
affects its own rights, duties or immunities under this Trust Agreement. The
Property Trustee and the Debenture Trustee shall be entitled to receive an
Opinion of Counsel and an Officers' Certificate stating that any amendment to
this Trust Agreement is in compliance with this Trust Agreement.
-56-
<PAGE> 62
SECTION 10.3. Separability. In case any provision in this Trust
Agreement 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 TRUST AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF EACH OF THE SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH
RESPECT TO THIS TRUST AGREEMENT IN THE TRUST SECURITIES SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE WITHOUT
REGARD TO ITS CONFLICT OF LAWS PRINCIPLES AND EXCLUDING SECTIONS 3540 AND 3561
OF TITLE 12 OF THE DELAWARE CODE.
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 Trust Agreement 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 transaction that is permitted under Article 8 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 Trust Agreement.
SECTION 10.8. Reports, Notices and Demands. Any report, notice,
demand or other communications which by any provision of this Trust Agreement
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 Newfield Exploration Company, 363 N. Sam Houston Parkway, E.,
Suite 2020, Houston, Texas 77060.
Any notice, demand or other communication which by any provision
of this Trust Agreement 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 the Corporate Trust Office, (b) with respect to the Delaware
Trustee, to One Rodney Square, 920 King
-57-
<PAGE> 63
Street, Wilmington, Delaware 19801, 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: ___________". 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 dissolved 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
dissolution of this Trust Agreement.
SECTION 10.10. Trust Indenture Act; Conflict with Trust
Indenture Act. (a) This Trust Agreement is subject to the provisions of the
Trust Indenture Act that are required to be part of this Trust Agreement 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 provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement 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 Trust Agreement
as so modified or to be excluded, as the case may be.
(d) The application of the Trust Indenture Act to this Trust
Agreement 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 Trust Agreement,
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
-58-
<PAGE> 64
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 TRUST AGREEMENT AND AGREEMENT TO THE SUBORDINATION
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 TRUST AGREEMENT SHALL BE BINDING, OPERATIVE
AND EFFECTIVE AS THE AGREEMENT OF THE TRUST AND SUCH SECURITYHOLDER AND SUCH
OTHERS.
SECTION 10.12. Counterparts. This Trust Agreement may
contain more than one counterpart of the signature page and this Trust
Agreement 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.
-59-
<PAGE> 65
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY,
as Depositor
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST UNION NATIONAL BANK,
as Property Trustee
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
as Delaware Trustee
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
-------------------------------------
DAVID A. TRICE,
as Administrative Trustee
-------------------------------------
TERRY W. RATHERT,
as Administrative Trustee
-------------------------------------
JAMES P. ULM, II,
as Administrative Trustee
-60-
<PAGE> 66
EXHIBIT A -- Certificate of Trust of
Newfield Financial Trust __
[To come]
-61-
<PAGE> 67
EXHIBIT B -- Form of Common Securities
of Newfield Financial Trust ___
THIS CERTIFICATE IS NOT TRANSFERABLE
EXCEPT TO AN ENTITY WHOLLY OWNED BY
NEWFIELD EXPLORATION COMPANY OR TO CERTAIN SUCCESSORS OF
NEWFIELD EXPLORATION COMPANY
Certificate Number ______ Number of Common Securities _______
Certificate Evidencing Common Securities
of
Newfield Financial Trust __
Common Securities
(Liquidation Amount $50 per Common Security)
Newfield Financial Trust __, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby certifies that
Newfield Exploration Company (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"). Except as set
forth in Section 5.10 of the Trust Agreement (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 Trust Agreement of the Trust dated as of _______ ___, ____, as the
same may be amended from time to time (the "Trust Agreement") 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 Newfield Exploration Company, a Delaware corporation, and First
Union National Bank, as Guarantee Trustee, dated as of _______ ___, ____, as
the same may be amended from time to time (the "Guarantee"), to the extent
provided therein. The Trust will furnish a copy of the Trust Agreement 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
Trust Agreement and is entitled to the benefits thereunder.
-62-
<PAGE> 68
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of _______ ____.
NEWFIELD FINANCIAL TRUST
By:
-------------------------------------
Name:
------------------------------------
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the within-
mentioned Trust Agreement.
Dated:
------------------------
First Union National Bank,
as Property Trustee
By:
-------------------------------------
Name:
------------------------------------
Authorized Signatory
-63-
<PAGE> 69
EXHIBIT C -- Form of Preferred Securities of
Newfield Financial Trust __
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT
- - This Preferred Security is a Book-Entry Preferred Securities Certificate
within the meaning of the Trust Agreement 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 Trust Agreement 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 certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to Issuer or its agent for registration of transfer, exchange or payment, and
any certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment 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 OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
-64-
<PAGE> 70
Certificate Number ______ Number of Preferred Securities ________
CUSIP NO. ____________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
NEWFIELD FINANCIAL TRUST __
____% Convertible Preferred Securities
(Liquidation Amount $50 per Preferred Security)
Newfield Financial Trust __, a statutory business trust created
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 Newfield Financial Trust __ ____%
Convertible Preferred Securities (Liquidation Amount $50 per Preferred
Security) (the "Preferred Securities"). Except to the extent set forth in the
Trust Agreement (as defined below), 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 Trust Agreement (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 Trust Agreement of the Trust dated as of _______ __, ____, as the
same may be amended from time to time (the "Trust Agreement") 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
Newfield Exploration Company, a Delaware corporation, and First Union National
Bank, as Guarantee Trustee, dated as of _______ __, ____, as the same may be
amended from time to time (the "Guarantee"), to the extent provided therein.
The Trust will furnish a copy of the Trust Agreement 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
Trust Agreement and is entitled to the benefits thereunder.
-65-
<PAGE> 71
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of _______ ____.
NEWFIELD FINANCIAL TRUST
By:
-------------------------------------
Name:
------------------------------------
As Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Trust Agreement.
Dated:
--------------------
First Union National Bank,
as Property Trustee
By:
-------------------------------------
Name:
------------------------------------
Authorized Signatory
-66-
<PAGE> 72
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 Securities 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
Securities Certificate)
-67-
<PAGE> 73
[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>
<CAPTION>
Amount of increase
in Liquidation Liquidation Amount
Amount of this Amount of decrease of this Global Signature of
Global Certificate in Liquidation Certificate authorized officer
Date Made including upon Amount of this following such of Trustee or
exercise of over- Global Certificate decrease or Securities
allotment option increase Custodian
<S> <C> <C> <C> <C>
</TABLE>
-68-
<PAGE> 74
EXHIBIT D -- Notice of Conversion
NOTICE OF CONVERSION
To: First Union National Bank
as Property Trustee of
Newfield Financial Trust __
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Common Stock of Newfield Exploration Company
(the "Newfield Common Stock") in accordance with the terms of the Amended and
Restated Trust Agreement (as amended from time to time, the "Trust Agreement"),
dated as of _______ __, ____, by ________________, __________________ and
___________ ___________, as Administrative Trustees, ____________________, as
Delaware Trustee, ____________________, as Property Trustee, Newfield
Exploration Company, as Depositor, and by the Holders, from time to time, of
undivided beneficial interests in the assets of the Trust to be issued pursuant
to the Trust Agreement. Pursuant to the aforementioned exercise of the option
to convert these Preferred Securities, the undersigned hereby directs the
Conversion Agent (as that term is defined in the Trust Agreement) to (i)
exchange such Preferred Securities for a portion of the Debentures (as that
term is defined in the Trust Agreement) held by the Trust (at the rate of
exchange specified in the terms of the Preferred Securities set forth in the
Trust Agreement) and (ii) immediately convert such Debentures on behalf of the
undersigned, into Newfield Common Stock (at the conversion rate specified in
the terms of the Preferred Securities set forth in the Trust Agreement).
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.
-69-
<PAGE> 75
Date:
--------------------------
in whole in part
----- -----
Number of Preferred 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 Newfield Common Stock are to be issued,
along with the address or addresses of such
person or persons
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
---------------------------------------------
Signature (for conversion only)
Please Print or 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.
-70-
<PAGE> 1
\ EXHIBIT 4.15
CERTIFICATE OF TRUST
OF
NEWFIELD FINANCIAL TRUST II
THIS Certificate of Trust of Newfield Financial Trust II (the
"Trust"), dated as of August 28, 1998, is being duly executed and filed by the
undersigned, as trustees, to form a business trust under the Delaware Business
Trust Act (12 Del. C. Section 3801, et seq.).
1. Name. The name of the business trust formed hereby is
Newfield Financial Trust II.
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are First Union Trust Company, National Association, One Rodney Square, 920 King
Street, Wilmington, Delaware 19801, Attention:
Corporate Trust Administration.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the
Trust, have executed this Certificate of Trust as of the date first-above
written.
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as trustee of the Trust
By: /s/ EDWARD L. TRUITT, JR.
---------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
TERRY W. RATHERT, not in his individual capacity
but solely as trustee of the Trust
/s/ Terry W. Rathert
---------------------------------------
<PAGE> 1
EXHIBIT 4.16
TRUST AGREEMENT
OF
NEWFIELD FINANCIAL TRUST II
THIS TRUST AGREEMENT is made as of August 28, 1998 (this "Trust
Agreement"), by and among Newfield Exploration Company., a Delaware corporation,
as Depositor (the "Depositor"), and First Union Trust Company, National
Association, a national association, as trustee, and Terry W. Rathert, as
trustee (jointly, the "Trustees"). The Depositor and the Trustees hereby agree
as follows:
1. The trust created hereby shall be known as "Newfield Financial Trust
II" (the "Trust"), in which name the Trustees or the Depositor, to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. Such amount shall constitute the initial trust estate.
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 constitute the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in such form as the Trustees may approve.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement satisfactory to each such party to provide for the
contemplated operation of the Trust created hereby and the issuance of the
Preferred or Capital Securities and Common Securities referred to therein. Prior
to the execution and delivery of such amended and restated Trust Agreement, the
Trustees shall not have any duty or obligation hereunder or with respect of 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. Notwithstanding the
foregoing, the Trustees may take all actions deemed proper as are necessary to
effect the transactions contemplated herein.
4. The Depositor, as sponsor of the Trust, is hereby authorized, in its
discretion, (i) to prepare and file with the Securities and Exchange Commission
(the "Commission") and to execute, in the case of the 1933 Act Registration
Statement and 1934 Act Registration Statement (as herein defined), on behalf of
the Trust, (a) a Registration Statement (the "1933 Act Registration Statement"),
including all pre-effective and post-effective amendments thereto, relating to
the registration under the Securities Act of 1933, as amended (the "1933 Act"),
of the Preferred or Capital Securities of the Trust, (b) any preliminary
prospectus or prospectus or supplement thereto relating to the Preferred or
Capital Securities of the Trust required to be filed pursuant to the 1933 Act,
and (c) a Registration Statement on Form 8-A or other appropriate form (the
"1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
or Capital Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) if and at such time as determined by the Depositor, to file with
the New York Stock Exchange or other exchange, or the National
<PAGE> 2
Association of Securities Dealers ("NASD"), and execute on behalf of the Trust a
listing application and all other applications, statements, certificates,
agreements and other instruments as shall be necessary or desirable to cause the
Preferred or Capital Securities of the Trust to be listed on the New York Stock
Exchange or such other exchange, or the NASD's Nasdaq National Market; (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 that shall be necessary or desirable to register the
Preferred or Capital Securities of the Trust 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 execute and deliver letters or documents to, or
instruments for filing with, a depository relating to the Preferred or Capital
Securities of the Trust; and (v) to execute, deliver and perform on behalf of
the Trust an underwriting agreement with one or more underwriters relating to
the offering of the Preferred or Capital Securities of the Trust.
In the event that any filing referred to in this Section 4 is required
by the rules and regulations of the Commission, the New York Stock Exchange or
other exchange, NASD, or state securities or "Blue Sky" laws to be executed on
behalf of the Trust by the Trustees, the Trustees, in their capacity as trustees
of the Trust, are hereby authorized to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that the
Trustees, in their capacity as trustees 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 New York
Stock Exchange or other exchange, NASD, or state securities or "Blue Sky" laws.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of trustees of the Trust initially shall be two and
thereafter the number of trustees of the Trust 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 of the Trust; provided, however,
that to the extent required by the Business Trust Act, one trustee of the Trust
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. Subject to the foregoing, the Depositor is entitled to
appoint or remove without cause any trustee of the Trust at any time. Any
trustee of the Trust may resign upon thirty days' prior notice to the Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (ii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against and all losses, damages, liabilities, claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby;
-2-
<PAGE> 3
provided, however, that the Depositor shall not be required to indemnify any
Indemnified Person for any Expenses which are a result of the willful
misconduct, bad faith or gross negligence of such Indemnified Person.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY, as
Depositor
By: /s/ TERRY W. RATHERT
----------------------------------------------
Name: Terry W. Rathert
Title: Vice President -- Planning and
Administration and Secretary
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as trustee of the Trust
By: /s/ EDWARD L. TRUITT, JR.
----------------------------------------------
Name: Edward L. Truitt, Jr.
Title: Vice President
TERRY W. RATHERT, not in his individual
capacity but solely as trustee of the Trust
/s/ TERRY W. RATHERT
------------------------------------------------
-3-
<PAGE> 1
EXHIBIT 4.19
________________________________________________________________________________
NEWFIELD EXPLORATION COMPANY
to
FIRST UNION NATIONAL BANK
as Trustee
_________________________________________________________
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF _____________, ____
____% CONVERTIBLE SUBORDINATED DEBENTURES
DUE ________________
________________________________________________________________________________
<PAGE> 2
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the Junior
Convertible Subordinated Indenture whether or not physically contained therein)
and the Junior Convertible Subordinated Indenture, dated as of __________ __,
____.
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
- --------------- ---------
<S> <C>
Section 310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(a), 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a)(1), (2),(3) and (4) . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
-i-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificate and Opinions . . . . . . . . . . . . . 11
SECTION 1.3 Forms of Documents Delivered to Trustee . . . . . . . . . . . 12
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.5 Notices, Etc. to Trustee and Company . . . . . . . . . . . . . 13
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 14
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . 14
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . . . . . . 14
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.13 Non-Business Days . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2 Form of Face of Debenture . . . . . . . . . . . . . . . . . . 15
SECTION 2.3 Form of Reverse of Debenture . . . . . . . . . . . . . . . . . 16
SECTION 2.4 Additional Provisions Required in Global Debenture . . . . . . 23
SECTION 2.5 Form of Trustee's Certificate of Authentication . . . . . . . 23
SECTION 2.6 Initial Issuance to Property Trustee . . . . . . . . . . . . . 23
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . 24
SECTION 3.4 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.5 Registration, Transfer and Exchange . . . . . . . . . . . . . 25
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . 26
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . 27
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . 28
SECTION 3.11 Deferrals of Interest Payment Dates . . . . . . . . . . . . 29
SECTION 3.12 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.13 Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.15 Global Security . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . 32
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . 33
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . 34
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . 36
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures . 37
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . 37
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . 39
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . 39
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 39
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 40
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 41
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws . . . . . . . . . . 41
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . 41
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . 43
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures . . . 44
SECTION 6.5 May Hold Debentures . . . . . . . . . . . . . . . . . . . . 44
</TABLE>
-iii-
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . 45
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . 46
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . 46
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . 46
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . 48
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.13 Preferential Collection of Claims Against Company . . . . . . 48
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . 48
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders . . . . . . 50
SECTION 7.2 Preservation of Information; Communications to Holders . . . . 50
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms . . . . . 52
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . 52
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . 53
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . 54
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . 55
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . 55
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . 56
SECTION 9.6 Reference in Debentures to Supplemental Indentures . . . . . . 56
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . 56
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . 56
SECTION 10.3 Money for Debenture Payments to Be Held in Trust . . . . . . . 56
SECTION 10.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . 58
SECTION 10.5 Statement as to Compliance . . . . . . . . . . . . . . . . . . 58
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<S> <C>
SECTION 10.6 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 58
SECTION 10.7 Additional Sums . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.8 Additional Covenants . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.9 Payment of Expenses of the Trust . . . . . . . . . . . . . . . 60
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee . . . . . . . . . . . . 60
SECTION 11.2 Selection of Debentures to Be Redeemed . . . . . . . . . . . . 61
SECTION 11.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.4 Deposit of Redemption Price . . . . . . . . . . . . . . . . . 62
SECTION 11.5 Debentures Payable on Redemption Date . . . . . . . . . . . . 62
SECTION 11.6 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . 63
SECTION 11.7 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.8 Optional Redemption . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.9 Exchange of Trust Securities for Debentures . . . . . . . . . 64
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt . . . . . . . . . . . . 65
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . 65
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.4 No Payment When Senior Debt in Default . . . . . . . . . . . . 67
SECTION 12.5 Payment Permitted If No Default . . . . . . . . . . . . . . . 67
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt . . . . . . . 68
SECTION 12.7 Provisions Solely to Define Relative Rights . . . . . . . . . 68
SECTION 12.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . 68
SECTION 12.9 No Waiver of Subordination Provisions . . . . . . . . . . . . 69
SECTION 12.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . 69
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.14 Article Applicable to Paying Agents . . . . . . . . . . . . . 70
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment . . . . . . . 70
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights . . . . . . . . . . . . . . . . . . . . . . 70
</TABLE>
-v-
<PAGE> 7
<TABLE>
<S> <C>
SECTION 13.2 Conversion Procedures . . . . . . . . . . . . . . . . . . . . 70
SECTION 13.3 Expiration of Conversion Rights . . . . . . . . . . . . . . . 73
SECTION 13.4 Conversion Price Adjustments . . . . . . . . . . . . . . . . . 73
SECTION 13.5 Fundamental Change . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.6 Notice of Adjustments of Conversion Price . . . . . . . . . . 80
SECTION 13.7 Prior Notice of Certain Events . . . . . . . . . . . . . . . . 80
SECTION 13.8 Certain Additional Rights . . . . . . . . . . . . . . . . . . 81
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.10 Trustee Not Responsible for Determining Conversion Price
or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 82
</TABLE>
-vi-
<PAGE> 8
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of _________
__, ____ between Newfield Exploration Company., a Delaware corporation (the
"Company") having its principal office at 363 N. Sam Houston Parkway E., Suite
2020, Houston, Texas 77060, and FIRST UNION NATIONAL BANK, a national banking
association ("First Union"), as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its _____% Convertible
Subordinated Debentures (the "Debentures") of substantially the tenor
hereinafter provided which evidence loans made to the Company of the proceeds
from the issuance by Newfield Financial Trust __, a Delaware business trust
(the "Trust"), of preferred trust interests in the Trust (the "Preferred
Securities") and common interests in the Trust (the "Common Securities"), and
to provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered.
All things necessary to make the Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debentures, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purpose of this Indenture,
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 which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
-1-
<PAGE> 9
hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(d) the words "herein" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Debentures that is in arrears for more than one
interest payment period or not paid during any Extension Period, which in
either case (to the extent permitted by law) shall accrue at the stated rate
per annum specified or determined as specified in such Debenture and compounded
quarterly.
"Additional Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means the sum of any additional taxes, duties
and other governmental charges to which the Trust has become subject from time
to time as a result of a Tax Event.
"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 Company shall be deemed not to include the Trust to which Debentures
have been issued. 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.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any other Non-Stock Fundamental Change or any
Common Stock Fundamental Change, the average of the Closing Prices for Company
Common Stock during the ten trading days prior to and including the record date
for the determination of the holders of Company Common Stock entitled to
receive such securities, cash, or other property in connection with such Non-
Stock Fundamental Change or Common Stock Fundamental Change or, if there is no
such record date, the date upon which the holders of Company Common Stock shall
have the right to receive such securities, cash, or other property, in each
case as adjusted in good faith by the Company to appropriately reflect any of
the events referred to in Section 13.4.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
-2-
<PAGE> 10
"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of the resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"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 Trustee, or the principal office of the Property
Trustee under the Trust Agreement, is closed for business.
"Closing Price" means on any day the reported last sale price on
such day or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices in each case on the NYSE Consolidated
Transactions Tape or, if the stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which such stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
as furnished by any NYSE member firm, selected by the Trustee for that purpose.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution 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 on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock Fundamental Change" means any Fundamental Change in
which more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Company Common Stock
consists of common stock that for each of the ten consecutive trading days
prior to the record date for the determination of the holders of Company Common
Stock entitled to receive such common stock or, if there is no such record
date, the date on which the holders of Company Common Stock shall have the
right to receive such common stock, has been admitted for listing or admitted
for listing subject to notice of issuance on a national securities exchange or
quoted on the Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Preferred Securities continue to exist as outstanding Preferred
Securities or (ii) not later than the occurrence of such Fundamental Change,
the outstanding Preferred Securities are converted into or exchanged for shares
of convertible preferred stock of an entity succeeding to the business of the
Company or a subsidiary thereof, which convertible preferred stock has powers,
preferences, and
-3-
<PAGE> 11
relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Preferred
Securities.
"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 Common Stock" means common stock, par value $.01 per
share, of the Company.
"Company Request" and "Company Order" means, respectively, the
written request or order signed in the name of the Company by its Chairman of
the Board, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 13.2.
"Conversion Date" has the meaning specified in Section 13.2.
"Conversion Price" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall be located at 230 South Tryon Street, Ninth
Floor, Charlotte, North Carolina 28288-1179 or such other address as the
Trustee may give notice thereof to the Company, Attention: Corporate Trustee
Administration.
"Current Market Price" means for any day the last reported sale
price, regular way, on such day of Company Common Stock, 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 NYSE Consolidated
Transactions Tape, or, if Company Common Stock is not listed or admitted to
trading on the NYSE on such day, on the principal national securities exchange
on which Company Common Stock is listed or admitted to trading, if Company
Common Stock is listed on a national securities exchange, or the Nasdaq
National Market, or, if Company Common Stock is not quoted or admitted to
trading on such quotation system, on the principal quotation system on which
Company 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 Company
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
NYSE 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.
-4-
<PAGE> 12
"Debentures" or "Debenture" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person, and (vi) every obligation of the type referred to in clauses (i)
through (v) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible for or
liable, directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or
issued in whole or in part in the form of one or more Global Debentures, the
Person designated as Depositary by the Company (or any successor thereto).
"Dollar" means the currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts.
"Events of Default" has the meaning specified in Article 5.
"Expiration Time" has the meaning specified in Section 13.4(e).
"Extension Period" has the meaning specified in Section 3.11.
"Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
Company Common Stock shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise); provided, that, in the case of a plan involving more than one such
Transaction or event, for purposes of adjustment of the conversion price, such
Fundamental Change shall be deemed to have occurred when substantially all of
Company Common Stock shall be exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property, but
the adjustment shall be based upon consideration that a holder of Company
Common Stock received in such Transaction or event as a result of which more
than 50% of Company Common Stock shall have been exchanged
-5-
<PAGE> 13
for, converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property.
"Global Debenture" means a Debenture in the form prescribed in
Section 2.4 evidencing all or part of the Debentures, issued to the Depositary
or its nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means the guarantee by the Company of distributions
on the Preferred Securities of the Trust to the extent provided in the
Guarantee Agreement, substantially in the form attached hereto as Annex C, as
amended from time to time.
"Holder" means a Person in whose name a Debenture is registered
in the Securities Register.
"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.
"Interest Payment Date" means as to the Debentures the Stated
Maturity of an installment of interest on such Debentures.
"Interest Rate" means the rate of interest specified or
determined as specified in each Debenture as being the rate of interest payable
on such Debenture.
"Investment Company Event" means, in respect of the Trust, 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 "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 of the Trust.
"Junior Subordinated Payment" has the meaning specified in
Section 12.2.
"Maturity" when used with respect to the Debentures, means the
date on which the principal of the Debentures become due and payable as herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call or redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Non Book-Entry Preferred Securities" has the meaning specified
in Section 3.15.
-6-
<PAGE> 14
"Non-Stock Fundamental Change" means any Fundamental Change other
than a Common Stock Fundamental Change.
"Notice of Conversion" means the notice given by a Holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Securities for Debentures and to convert such
Debentures into Company Common Stock on behalf of such holder.
"Notice of Default" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate 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 the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, the Trust, or the Trustee, but who may be an
employee thereof, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all
Debentures theretofore authenticated and delivered under this Indenture,
except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary amount
has been theretofore irrevocably deposited with the Trustee or any
Paying Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Section 3.6, or which have been converted into Company
Common Stock pursuant to Section 13.1, unless proof satisfactory to the
Trustee is presented that any Debentures are held by Holders in whose
hands such Debentures are valid, binding and legal obligations of the
Company; provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Debentures have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Debentures owned by the Company or any other obligor upon the
Debentures or any Affiliate of the Company or such other obligor shall
be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be fully protected in conclusively
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes
-7-
<PAGE> 15
to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not the Company or
any other obligor upon the Debentures or any Affiliate of the Company or
such other obligor. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Debentures, if any, known by the Company to be owned or
held by or for the account of the Company, or any other obligor on the
Debentures or any Affiliate of the Company or such obligor, and, subject
to the provisions of Section 6.1, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Debentures not listed therein
are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Debentures on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first
recital of this Indenture.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means, in respect of the Trust, the commercial
bank or trust company identified as the "Property Trustee" in the Trust
Agreement, solely in its capacity as Property Trustee of the Trust under the
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided.
"Purchased Shares" has the meaning specified in Section 13.4(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for common stock received
in such Common Stock Fundamental Change for the ten consecutive trading days
prior to and including the record date for the determination of the holders of
common stock entitled to receive such common stock or if there is no such
record date, the date on which the holders of common stock shall have the right
to receive such common stock, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 13.4.
-8-
<PAGE> 16
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section 11.3(b).
"Reference Date" has the meaning specified in Section 13.4(c).
"Reference Market Price" initially means $_____ (which is an
amount equal to 66 2/3% of the reported last sale price for Company Common
Stock on the NYSE Consolidated Transactions Tape on _________ __, ____), and in
the event of any adjustment of the Conversion Price other than as a result of a
Non-Stock Fundamental Change, the Reference Market Price shall also be adjusted
so that the ratio of the Reference Market Price to the Conversion Price after
giving effect to any such adjustment shall always be the same as the ratio of
the initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Regular Record Date" means for the interest payable on any
Interest Payment Date the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means
any officer assigned to the Trustee's Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Rights" has the meaning specified in Section 13.2(f).
"Rights Agreement" has the meaning specified in Section 13.2(f).
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures, provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which when incurred and, without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the
Company, (b) any Debt of the Company to any of
-9-
<PAGE> 17
its Subsidiaries, (c) Debt to any employee of the Company, (d) any liability
for taxes, (e) Debt or other monetary obligations to trade creditors created or
assumed by the Company or any of its Subsidiaries in the ordinary course of
business in connection with the obtaining of goods, materials or services and
(f) the Debentures.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to the Debentures or any
installment of principal thereof or interest thereon means the date specified
in the Debentures as the fixed date on which the principal of the Debentures or
such installment of interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the outstanding shares of voting stock.
For purposes of this definition, "voting stock" means stock which 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.
"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 of the Trust and does not pertain to the use of the
proceeds of the issuance of the Debentures, there is more 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 Company on the Debentures is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United States
Federal income tax purposes or (iii) the Trust is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of other taxes,
duties, assessments or other governmental charges.
"Transaction" has the meaning specified in Section 13.5(a).
"Trust" has the meaning specified in the first recital of this
Indenture.
-10-
<PAGE> 18
"Trust Agreement" means the Trust Agreement substantially in the
form attached hereto as Annex A, as amended by the form of Amended and Restated
Trust Agreement substantially in the form attached hereto as Annex B, as
amended from time to time.
"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 if
at any time there is more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa-77bbb), as amended and as in effect on the date as of
this Indenture.
"Trust Securities" means the Common Securities and Preferred
Securities.
"Underwriters" with respect to the Preferred Securities, means
_________________.
"Underwriting Agreement" means the Underwriting Agreement dated
________ __, ____ by and among Newfield Financial Trust __, Newfield
Exploration Company and the Underwriters.
"Vice President" when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
SECTION 1.2 Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including
covenants, compliance with which constitutes a condition 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 (including covenants compliance with
which constitute a condition 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 (other than the certificates provided pursuant to Section 10.5) shall
include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) 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;
-11-
<PAGE> 19
(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Forms of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents. Any certificate or
opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
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 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
to 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; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
(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 the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds,
-12-
<PAGE> 20
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a
Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person 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 and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Debentures shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debenture shall
bind every future Holder of the same Debenture and the Holder of every
Debenture issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done 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 Debenture.
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take
any action under this Indenture by vote or consent. Except as otherwise
provided herein, such record date shall be the later of 30 days prior to
the first solicitation of such consent or vote or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 7.1
prior to such solicitation. If a record date is fixed, those persons who
were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled 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.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any particular
Debenture may do so with regard to all or any part of the principal
amount of such Debenture or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any
different part of such principal amount.
SECTION 1.5 Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
(a) 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,
or
-13-
<PAGE> 21
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.1 hereof) hereunder 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.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register on the date
such notice is mailed, which shall be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 Conflict with Trust Indenture Act. If any provision
of this Indenture limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the former provision shall be deemed to apply.
SECTION 1.8 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 1.9 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 1.10 Separability Clause. In case any provision in this
Indenture or in the Debentures 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 1.11 Benefits of Indenture. Nothing in this Indenture or
in the Debentures, express or implied, shall give to any Person, other than the
parties thereto, any Paying Agent and their successors and assigns and the
Holders of the Debentures, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
-14-
<PAGE> 22
SECTION 1.12 Governing Law. This Indenture and the Debentures
shall be governed by and construed in accordance with the laws of the State of
New York without regard to its principles of conflicts of laws.
SECTION 1.13 Non-Business Days. Except as otherwise provided in
Section 11.5, in any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Debentures)
payment of interest or principal payable on such date will be made on the next
succeeding day that 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 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 or Redemption Date or Stated Maturity.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally. The Debentures and the Trustee's
certificate of authentication shall be in substantially the forms sets forth in
this Article 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 applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange on which the Debentures may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Debentures may be listed, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.2 Form of Face of Debenture.
_____% Convertible Subordinated Debenture due _________ __, ____
No. __ $
Newfield Exploration Company, a corporation organized and
existing under the laws of Delaware (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________, or registered assigns, the
principal sum of $_______ on ________ __, ____ and to pay interest on said
principal sum from _________ __, ____ or from the most recent interest payment
date (each such date, an "Interest Payment Date") on which interest has been
paid or duly provided for, quarterly plus Additional Interest, if any until the
principal hereof is paid or duly provided for or made available
-15-
<PAGE> 23
for payment subject to deferral as set forth herein in arrears on _______ 1,
_______ 1, _______ 1 and _______ 1 of each year, commencing _______ __, ____ at
the rate of _____% per annum, until the principal hereof shall have become due
and payable.
Reference is hereby made to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated:
By:_____________________________
SECTION 2.3 Form of Reverse of Debenture. This Debenture is one
of a duly authorized issue of Debentures of the Company (the "Debentures")
limited to the aggregate principal amount of $____________, issued and to be
issued under a Junior Convertible Subordinated Indenture, dated as of ________
__, ____ (the "Indenture"), between the Company and First Union National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. All
terms used in this Debenture that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. For periods less than a
full month, interest shall be computed on the actual number of elapsed days
over 360 days. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of the interest 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 the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a 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 Trustee, or the principal office of the Property Trustee under
the Trust Agreement is closed for business. The interest
-16-
<PAGE> 24
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in the Indenture) is registered at the close of business on the Regular Record
Date, for such interest installment which shall be the date which is the
Business Day next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Debentures not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The Company shall have the right at any time during the term of
this Debenture, from time to time, to extend the interest payment period of
such Debenture for up to 20 consecutive quarters with respect to each deferral
period (each such deferral period, an "Extension Period"), during which periods
the Company shall have the right not to make payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest, if any,
thereon to the extent permitted by applicable law); provided that during any
such Extension Period, the Company will not, and will not permit any Subsidiary
to, (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (i) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the
Company where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
dividend, redemption, interest, principal or guarantee payment is being made,
(ii) redemptions or purchases of any rights pursuant to any Rights Agreement
and the declaration of a dividend of such rights or the issuance of preferred
stock under such plans in the future, (iii) payments under the Guarantee, (iv)
purchases of Company Common Stock related to the issuance of Company Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (v) as a result of a reclassification of the Company's capital stock
or the exchange or conversion of one series or class of the Company's capital
stock for another series or class of the Company's capital stock and (vi) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that no Extension Period shall exceed 20 consecutive quarters or
extend beyond the Stated Maturity of this Debenture. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company
-17-
<PAGE> 25
shall give the Trustee, the Property Trustee and the Administrative Trustees
notice of its selection of an Extension Period at least one Business Day prior
to the earlier of (i) the record date for the date the distributions on the
Preferred Securities (or if no Preferred Securities are outstanding, for the
date interest on the Debentures) would have been payable except for the
election to begin such Extension Period or (ii) the date the Property Trustee
of Newfield Financial Trust __ is (or if no Preferred Securities are
outstanding, the Debenture Trustee is) required to give notice to NYSE or other
applicable self-regulatory organizations or to holders of such Preferred
Securities (or, if no Preferred Securities are outstanding, to the Holders of
such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest on
this Debenture will be made [INSERT, IF A GLOBAL SECURITY IS ISSUED - TO THE
DEPOSITARY TRUST COMPANY OR ITS NOMINEE] [INSERT IF SECURITIES IN DEFINITIVE
FORM ARE ISSUED - AT THE OFFICE OR AGENCY OF THE PAYING AGENT MAINTAINED FOR
THAT PURPOSE IN THE UNITED STATES], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts provided, however, that at the option of the Company
payment of interest may be made (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities Register
or (b) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as specified
in the Securities Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payments to the
prior payment in full of all Senior Debt (as defined in the Indenture), and
this Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Debenture, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such actions as may be necessary or appropriate
to effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
At any time on or after ________ __, ____, the Company may, at
its option, subject to the terms and conditions of Article 11 of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, at the
Redemption Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture
shall be exchangeable for Preferred Securities in accordance with Section 11.9
of the Indenture or, in certain circumstances, redeemable by the Company in
accordance with Section 11.8 of the Indenture.
-18-
<PAGE> 26
Subject to the terms and conditions set forth in Article 13 of
the Indenture, this Debenture is convertible, at the option of the Holder,
hereof into shares of Company Common Stock.
If an Event of Default shall occur and be continuing, the
principal of the Debentures may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Debentures to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Debentures.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Debentures at the time Outstanding, on
behalf of the Holders of all Debentures, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Debenture and upon all future
Holders of this Debenture and of any Debenture issued upon the registration of
transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if
an Event of Default shall occur and be continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), provided that, if an Event of Default
shall occur and be continuing, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debentures fail to declare the principal
of all the Debentures to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Debentures shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on such
Debentures shall remain subordinated to the extent provided in Article 12 of
the Indenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Debenture at the times, place and rate,
and in the coin or currency, herein prescribed.
-19-
<PAGE> 27
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture is registrable in the
Securities Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.2
of the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States Federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
-20-
<PAGE> 28
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_________________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
___________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Date:
______________________
Signature Guarantee:*
____________________________________________
_____________
* Signature must be guaranteed by an institution which is a member of one
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.
-21-
<PAGE> 29
NOTICE OF CONVERSION
To: Newfield Exploration Company
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below
designated, into Common Stock of NEWFIELD EXPLORATION COMPANY in accordance
with the terms of the Indenture referred to in this Debenture, and directs 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.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Debenture, agrees to be
bound by the terms of any Rights Agreement relating to Company Common Stock
issuable upon conversion of the Debenture.
Date: ____________, ____
in whole ___
Portions of Debenture to be
in part ___ converted ($50 or integral multiples thereof):
$__________________
______________________________________________
Signature (for conversion only)
Please Print or 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 one
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
-22-
<PAGE> 30
Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee
programs acceptable to the Trustee.
SECTION 2.4 Additional Provisions Required in Global Debenture.
Any Global Debenture issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3 bear a legend in substantially the following
form: "This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5 Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication shall be as follows:**
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
First Union National Bank,
as Trustee
By: ________________________
Authorized Signatory
Dated: _____________________"
SECTION 2.6 Initial Issuance to Property Trustee. The
Debentures initially issued to the Property Trustee of the Trust shall be in
the form of one or more individual certificates in definitive, fully registered
form without coupons.
__________
** Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures. The aggregate principal
amount of Debentures which may be authenticated and delivered under this
Indenture is $____________ except
-23-
<PAGE> 31
for Debentures authenticated and delivered upon registration of, transfer of,
or in exchange for, or in lieu of, other Debentures pursuant to Sections 3.4,
3.5 or 3.6.
SECTION 3.2 Denominations. The Debentures shall be in
registered form without coupons and shall be issuable in denominations of $50
and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating. The
Debentures shall be executed on behalf of the Company by its President or one
of its Vice Presidents under its corporate seal reproduced or impressed thereon
and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Debentures may be manual or
facsimile.
Debentures 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
Debentures or did not hold such offices at the date of such Debentures. Upon
the execution and delivery of this Indenture, or from time to time thereafter,
Debentures may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Securities to or upon Company Order without any further action by the Company.
Debentures may be authenticated on original issuance from time to time and
delivered pursuant to such procedures acceptable to the Trustee ("Procedures")
as may be specified from time to time by Company Order. Procedures may
authorize authentication and delivery pursuant to instructions of the Company
or a duly authorized agent, which instructions shall be promptly confirmed in
writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4 Temporary Debentures. Pending the preparation of
definitive Debentures, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Debentures which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Debentures in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debentures
may determine, as evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the
-24-
<PAGE> 32
temporary Debentures at the office or agency of the Company designated for the
purpose without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Debentures, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debentures of authorized denominations. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures.
SECTION 3.5 Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Debentures and of transfers of
Debentures. Such register is herein sometimes referred to as the "Securities
Register." The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration or transfer of any Debenture at
the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange
shall (if so required by the Company or the Securities Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Debentures, 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 transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall
be exchangeable pursuant to this Section 3.5 for Debentures registered in the
names of Persons other than the Depository for such Debenture or its nominee
only if (a) such Depository notifies the Company that it is unwilling or unable
to continue as Depository for the Global Debenture, and the Company shall
-25-
<PAGE> 33
not have appointed a successor Depository within 90 days after such notice, (b)
at any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and the Company shall not have
appointed a successor Depository within 90 days, (c) the Company executes and
delivers to the Trustee a Company Order that the Global Debenture shall be so
exchangeable or (d) there shall have occurred and be continuing an Event of
Default. The Global Debenture shall be exchangeable for Debentures registered
in such names as such Depository shall direct.
Notwithstanding any other provisions in this Indenture, the
Global Debenture may not be transferred except as a whole by the Depository
with respect to the Global Debenture to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository.
Neither the Company nor the Trustee shall be required, pursuant
to the provisions of this Section, (a) to issue, transfer or exchange any
Debenture during a period beginning at the opening of business 15 days before
the day of selection for redemption of Debentures pursuant to Article 11 and
ending at the close of business on the day of mailing of notice of redemption
or (b) to transfer or exchange any Debenture so selected for redemption in
whole or in part, except, in the case of any Debenture to be redeemed in part,
any portion thereof not to be redeemed.
Upon any distribution of the Debentures to the holders of the
Preferred Securities in accordance with the Trust Agreement, the Company and
the Trustee shall enter into a supplemental indenture pursuant to Section 9.1
to provide for transfer procedures and restrictions with respect to the
Debentures substantially similar to those contained in the Trust Agreement to
the extent applicable in the circumstances existing at the time of such
distribution.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Debenture and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon the receipt of a Company Order
requesting authentication its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
-26-
<PAGE> 34
Upon the issuance of any new Debenture 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 fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of
any destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture 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 Debentures 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 Debentures.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Debenture 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 Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date, except that interest
payable on the Stated Maturity of the Debentures shall be paid to the Person to
whom principal is paid.
Any interest on the Debentures which is payable, but is not
timely paid or duly provided for, on an Interest Payment Date ("Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on the
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 (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessors Debentures) 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 the Debentures 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,
-27-
<PAGE> 35
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 the Debentures at the address of such Holder
as it appears in the Securities 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
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Debentures are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debenture.
SECTION 3.8 Persons Deemed Owners. The Company, the Trustee,
the Paying Agent and any agent of the Company or the Trustee or the Paying
Agent may treat the Person in whose name any Debenture is registered as the
owner of such Debenture for the purpose of receiving payment of principal of
and (subject to Section 3.7) interest or premium on such Debenture and for all
other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation. All Debentures surrendered for
payment, redemption, conversion transfer or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Debentures and Debentures surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
or cause to be delivered to the Trustee for cancellation any Debentures
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. No Debentures shall be authenticated in lieu
of or in exchange for any Debentures canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Debentures shall
be destroyed by the Trustee and upon written request, the Trustee shall deliver
to the Company a certificate of such destruction.
SECTION 3.10 Computation of Interest. Interest on the Debentures
shall be computed on the basis of a 360-day year of twelve 30-day months.
-28-
<PAGE> 36
SECTION 3.11 Deferrals of Interest Payment Dates. The Company
shall have the right, at any time during the term of the Debentures, so long as
no Event of Default has occurred and is continuing, from time to time to extend
the interest payment period for the Debentures for up to 20 consecutive
quarters with respect to each deferral period (each, an "Extension Period")
during which periods the Company shall have the right to not make payments of
interest on any Interest Payment Date, and at the end of such Extension Period
the Company shall pay all interest then accrued and unpaid thereon (together
with Additional Interest thereon, if any, at the rate specified for the
Debentures, to the extent permitted by applicable law), provided, however, that
during any such Extension Period, the Company shall not, and shall cause any
Subsidiary not to, (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock or (b) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of the
Company that rank pari passu with or junior to the Debentures (other than (i)
any dividend, redemption, liquidation, interest, principal or guarantee payment
by the Company where the payment is made by way of securities (including
capital stock) that rank pari passu with or junior to the securities on which
such dividend, redemption, interest, principal or guarantee payment is being
made, (ii) redemptions or purchases of any rights pursuant to any Rights
Agreement and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (iii) payments under the
Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (v) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's
capital stock and (vi) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no such Extension Period shall exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Debentures.
Upon termination of any Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may
select a new Extension Period, subject to the above requirements. No interest,
including Additional Interest, if any, shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee, the Property Trustee and the Administrative Trustees written notice of
its selection of such Extension Period at least one Business Day prior to the
earlier of (i) the record date for the date the distributions on the Preferred
Securities of the Trust (or if no, Preferred Securities are outstanding, for
the date interest on the Debentures) would have been payable except for the
election to begin such Extension Period and (ii) the date the Property Trustee
(or, if no Preferred Securities are outstanding, the Trustee) is required to
give notice to NYSE or other applicable self-regulatory organization or to
holders of such Preferred Securities (or, if no Preferred Securities are
outstanding, to the Holders of such Debentures) of such record date, but in any
event not less than one Business Day prior to such record date. Such notice
shall specify the period selected.
-29-
<PAGE> 37
The Trustee shall promptly give notice of the Company's selection
of such Extension Period to the Holders of the outstanding Debentures and
Preferred Securities.
SECTION 3.12 Right of Set-off. Notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of the Debenture
to the extent the Company has theretofore made, or is concurrently on the date
of such payment making, a payment relating to the Debentures under the
Guarantee.
SECTION 3.13 Agreed Tax Treatment. Each Debenture issued
hereunder shall provide that the Company and, by its acceptance of a Debenture
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Debenture agree that for United States Federal,
state and local tax purposes it is intended that such Debenture constitute
indebtedness.
SECTION 3.14 CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use such "CUSIP" number in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such number either as printed on the Debentures
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debentures, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 3.15 Global Security.
(a) In connection with distribution of Debentures to holders
of the Preferred Securities in connection with the involuntary or
voluntary dissolution of the Trust, including a dissolution following
the occurrence of a Special Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Property Trustee in exchange for
a global certificate in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the
Depository, or its custodian, for crediting to the accounts of
its participants pursuant to the procedures of the Depository.
The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with
this Indenture; and
(ii) if any Preferred Securities are held in non book-
entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Property Trustee and any
Preferred Security certificate which represents Preferred
Securities other than Preferred Securities held by the Depository
or its nominee
-30-
<PAGE> 38
("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the
Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such Preferred Security
certificates are presented to the Securities Registrar for
transfer or reissuance at which time such Non-Book Entry
Preferred Security certificates will be canceled and a Debenture,
registered in the name of the holder of the Preferred Security
certificate or the transferee of the holder of such Preferred
Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security certificate canceled, will be executed by the
Company and delivered to the Trustee for authentication and
delivery in accordance with this Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee
will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depository, or to a nominee of such
successor Depository.
(c) If (a) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global
Debenture and no successor Depository shall have been appointed within
90 days by the Company, (b) the Depository, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the
Depository is required to be so registered to act as such Depository and
no successor Depository shall have been appointed within 90 days by the
Company, (c) the Company, in its sole discretion, determines that such
Global Debenture shall be so exchangeable or (d) there shall have
occurred and be continuing an Event of Default with respect to such
Debentures, as the case may be, the Company will execute, and, subject
to Article 3 of this Indenture, the Trustee, upon written notice from
the Company and receipt of a Company Order, will authenticate and
deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such Global
Debenture. In addition, upon an Event of Default that has occurred and
is continuing or in the event the Company determines that the Debenture
shall no longer be represented by a Global Debenture, the Company will
execute, and subject to Section 3.5 of this Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company and a Company Order, will authenticate and make available for
delivery, the Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee.
Such Debentures in definitive registered form issued in exchange for the
Global Debenture shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall
-31-
<PAGE> 39
instruct the Trustee in writing. The Trustee shall deliver such
Debentures to the Depository for delivery to the Persons in whose names
such Debentures are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Debentures, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest (including Additional Interest, if any) on the Debentures and
other rights, duties and obligations of the Holders as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (iii)
the rights and obligations of the Trustee hereunder), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Debentures 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 10.3) have
been delivered to the Trustee for cancellation; or (ii) all such
Debentures not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit or are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
written notice of redemption to the Trustee in the name,
and at the expense, of the Company, and the Company has
deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the
currency or currencies in which the Debentures are payable
sufficient (without regard to investment of such amount
deposited) to pay and discharge the entire indebtedness on
the Debentures not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest (including any Additional Interest) to the date
of such deposit or to the Stated Maturity; or
(C) have been redeemed or tendered for
conversion;
-32-
<PAGE> 40
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a)
of this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Debentures 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 for whose
payment such money or obligations have been deposited with or received by the
Trustee; provided, however, such moneys need not be segregated from other funds
except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever
used herein with respect to the Debentures, means any one of the following
events that has occurred and is continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium, if
any, on) the Debentures when due whether at Stated Maturity, upon
redemption by declaration or otherwise;
(c) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or agreements
on the part of the Company contained in
-33-
<PAGE> 41
the Debentures or contained in this Indenture (other than a covenant or
agreement which has been expressly included in this Indenture solely for
the benefit of the Company) and continuance for such failure for a
period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice
is a "Notice of Default" hereunder, shall have been given to the Company
by the Trustee, by registered or certified mail, or to the Company and
the Trustee by a Holder or Holders of at least 25% in aggregate
principal amount of the Debentures at the time Outstanding or the holder
or holders of at least 25% in aggregate liquidation amount of the
Preferred Securities;
(d) failure by the Company to issue Company Common Stock upon
an appropriate election by the Holder or Holders of the Debentures to
convert the Debentures into shares of Company Common Stock;
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of the Company 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 the Company or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the institution by the Company 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 other similar official) of the
Company or of any substantial part of its property or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated as bankrupt, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Debentures may declare the principal amount of and the
accrued interest (including any Additional Interest) on all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, if an Event of Default occurs
and is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures fail to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee, and upon any such declaration such principal
-34-
<PAGE> 42
amount (or specified amount) of and the accrued interest (including any
Additional Interest) on all the Debentures shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on the Debentures shall remain subordinated to the extent
provided in Article 12.
At any time after such a declaration of acceleration with respect
to Debentures 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 aggregate principal amount of the
Outstanding Debentures, by written notice to the Company and the Trustee may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest (including any
Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on) the
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures;
(iii) to the extent that payment of such interest is
lawful, interest (including any Additional Interest) upon overdue
installments of interest at the rate borne by the Debentures;
(iv) 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
(b) all Events of Default that shall have occurred and been
continuing with respect to Debentures, other than the non-payment of the
principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13. If
the holders of a majority in aggregate principal amount of the
Outstanding Debentures fail to rescind and annul such declaration and
its consequences, the holders of a majority in liquidation amount of the
Preferred Securities then outstanding shall have such right.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on the Debentures when such
interest becomes due and payable and such default continues for a period
of 30 days, or
-35-
<PAGE> 43
(b) default is made in the payment of the principal of (and
premium, if any, on) the Debentures whether at the Stated Maturity
thereof upon redemption by declaration or otherwise, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of
the Debentures, the whole amount then due and payable on the Debentures
for principal (and premium, if any) and interest (including any
Additional Interest), including, to the extent that payment of such
interest shall be lawful, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest (including
any Additional Interest) at the rate borne by the Debentures, and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
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, and may prosecute such proceeding to judgement or final decree, and may
enforce the same against the Company or any other obligor upon the Debentures
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 the
Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Debentures 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 5.4 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 Debentures or
the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures 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
(or premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim (including a claim for
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Debentures and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under
Section 6.7 and, of the Holders allowed in any such judicial
proceedings; and
-36-
<PAGE> 44
(ii) in particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and
(b) 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
for distribution in accordance with Section 5.6, 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 to it and any predecessor
Trustee under Section 6.7.
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
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5 Trustee May Enforce Claim Without Possession of
Debentures. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures 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 judgement
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.6 Application of Money Collected. Any money or
property collected or to be applied by the Trustee with respect to the
Debentures 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 or property on account of principal (or premium, if any) or interest
(including any Additional Interest), upon presentation of the Debentures 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 and any
predecessor Trustee under Section 6.7,
SECOND: to the payment of the amounts then due and unpaid upon
the Debentures for principal (and premium, if any) and interest (including any
Additional Interest), 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 the Debentures for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
-37-
<PAGE> 45
SECTION 5.7 Limitation on Suits. No Holder of the Debentures,
including a holder of Preferred Securities acting to enforce the rights of the
Property Trustee as a Holder of the Debentures pursuant to Section 5.8 of the
Trust Agreement, shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of the Outstanding
Debentures, the Holders of not less than 25% in principal amount of the
Outstanding Debentures 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;
(c) 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;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) 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 Debentures;
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
Holders of the Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Debenture shall have the right which is absolute
and unconditional to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest (including any Additional Interest) on
such Debenture on the Maturity or to convert such Debenture in accordance with
Article 13 and to institute suit for the enforcement of any such payment and
right to convert, and such right shall not be impaired without the consent of
such Holder. For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Indenture and
the Trust Agreement, upon an Event of Default that has occurred and is
continuing specified in Sections 5.1(a) or 5.1(b), any holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Company, for enforcement of payment to such holder of the principal amount of
(or premium, if any) or interest on Debentures having a principal amount equal
to the liquidation
-38-
<PAGE> 46
amount of the Preferred Securities of such holder (a "Direct Action").
Notwithstanding any payment made to such holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of (or premium, if any) or interest on the Debentures held
by the Trust or the Property Trustee. In connection with any such Direct
Action, the rights of the Company will be subrogated to the rights of any
holder of the Preferred Securities to the extent of any payment made by the
Company to such holder of Preferred Securities as a result of such Direct
Action. Except as set forth in this Section, the holders of Preferred
Securities shall have no right to execute any right or remedy available to the
Holders of or in respect of, the Debentures.
SECTION 5.9 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 the Company, the Trustee and the Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise
provided in the last paragraph of Section 3.6, 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 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of the Debentures to exercise any right or
remedy accruing upon any Event of Default that shall have occurred and be
continuing 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 5.12 Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Debentures shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Debentures, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
-39-
<PAGE> 47
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if the Trustee
in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any such
trust or power, with respect to the Debentures and, if all or part of the
Debentures is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Debentures entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date,
provided, that, unless the Holders of a majority in principal amount of the
Outstanding Debentures shall have joined in such notice prior to the day which
is 90 days after such record date, such notice shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new notice identical to a notice
which has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions
of this Section 5.12.
SECTION 5.13 Waiver of Past Defaults. Subject to Section 9.2
hereof, the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures affected by any past default may on behalf of the
Holders of all the Debentures waive any past default hereunder with respect to
Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures (unless
such default has been cured or waived and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee), or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture;
provided, however, that if the Debentures are held by the Trust or a trustee of
the Trust, such waiver shall not be effective until the holders of a majority
in liquidation amount of Trust Securities shall have consented to such waiver;
provided, further, that if the consent of the Holder of each outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities shall have consented to such waiver.
-40-
<PAGE> 48
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. If the
Holders of a majority in aggregate principal amount of the Outstanding
Debentures fail to waive such Event of Default, the holders of a majority in
aggregate liquidation amount of Preferred Securities shall have such right. No
such rescission shall affect any subsequent default or impair any right
consequent thereon. The provisions of this Section 5.13 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 Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Debenture by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, 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 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 Debentures, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures on or after the Maturity of the Debentures or to convert a Debenture
in accordance with Article 13. The provisions of this Section 5.14 shall be in
lieu of Section 315(e) of the Trust Indenture Act, and such Section 315(e) of
the Trust Indenture Act is hereby expressly excluded from this Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
-41-
<PAGE> 49
(i) 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
(ii) 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 provisions 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 person 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 grossly negligent action,
its own grossly negligent failure to act, or its own willful misconduct
except that;
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) 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; and
(iii) 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 Holders pursuant to Section 5.12
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.
(d) 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 there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(e) 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.
-42-
<PAGE> 50
SECTION 6.2 Notice of Defaults. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Securities 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
(including any Additional Interest) on Debenture, the Trustee shall be fully
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 Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Debentures; and provided, further,
that, except in the case of any default of the character specified in Section
5.1(c), no such notice to Holders of the Debentures shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default.
SECTION 6.3 Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request 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, conclusively rely upon an Officers'
Certificate and an Opinion of Counsel;
(d) the Trustee may consult with counsel of its choice 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;
(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;
-43-
<PAGE> 51
(f) the Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it;
(g) 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, indenture, Debenture or other paper or document,
but the Trustee in its discretion may make such inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for any misconduct or negligence on any part of any
agent, custodian, nominee or attorney appointed with due care by it
hereunder; and
(i) in the event that the Trustee is also acting as a Paying
Agent, Authenticating Agent, Conversion Agent, and/or Securities
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 6 shall also be afforded to such Paying Agent,
Authenticating Agent, Conversion Agent, and/or Securities Registrar.
(j) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its grossly negligent
action, grossly negligent omission or its willful misconduct; and
(k) the Trustee shall not be charged with knowledge of any
Event of Default under Section 5.1 (other than an Event of Default under
Section 5.1(a) or (b) if the Trustee is also the Paying Agent with
respect to the Securities) hereof or the existence of any Subsidiary of
the Company unless the Trustee shall have received notice thereof in
accordance with Section 1.5 hereof from the Company or a Holder.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debentures. The recitals contained herein and in the Debentures, 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 Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5 May Hold Debentures. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debentures and, subject
to Sections 6.8 and 6.13, may otherwise deal with the
-44-
<PAGE> 52
Company with the same rights it would have if it were not Trustee, Paying
Agent, Securities Registrar or such other agent.
SECTION 6.6 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 of interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee 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);
(b) 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); and
(c) to indemnify the Trustee and its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or
bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties 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. This Indemnification shall survive the
termination of this Agreement or the earlier resignation or removal of
the Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Debentures on all money or property held or collected by the Trustee except
assets held in trust to pay principal and premium, if any, or interest on
particular Debentures pursuant to Section 4.1(a)(ii)(B), or pursuant to any
redemption pursuant to Article 11 hereof if monies have been deposited for such
redemption and notice has been given and the Redemption Date has passed. Such
lien shall survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or a successor statute.
-45-
<PAGE> 53
SECTION 6.8 Disqualification; Conflicting Interests. The
Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trustee Indenture Act. The Trust Agreement and the
Guarantee shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 6.9 Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States of America or of any State, Territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, to 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. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee hereunder.
SECTION 6.10 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
under Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
-46-
<PAGE> 54
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Debentures,
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged as bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
other similarly situated Holders, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(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 Debentures, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Debentures shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debentures delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Debenture for at least six
months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of the Debentures as their name and addresses
appear in the Securities Register. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
-47-
<PAGE> 55
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, 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 written 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) 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 rights, power
and trusts referred to in paragraph (a) of this Section.
(c) 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 6.12 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 of 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 Debentures 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 Debentures so authenticated, and in case
any Debentures shall not have been authenticated, any successor to the Trustee
may authenticate such Debentures either in the name of any predecessor Trustee
or in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents, as described and with the powers
and obligations conferred by this Section 6.14 ("Authenticating Agent or
Agents"), with respect to the Debentures which shall be
-48-
<PAGE> 56
authorized to act on behalf of the Trustee to authenticate the Debentures
issued upon exchange, registration of transfer or partial redemption thereof,
and Debentures 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 Debentures by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any 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 all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, 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 give notice of such
appointment in the manner provided in Section 1.6 to all Holders of the
Debentures. 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 provision 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 6.7.
-49-
<PAGE> 57
If an appointment is made pursuant to this Section, the
Debentures may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the
following form:
This is one of the Debentures referred to in the within mentioned
indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (unless the
Trustee is acting as the Securities Registrar):
(a) quarterly at least five Business Days before each Interest
Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of each such date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished.
SECTION 7.2 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its
capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
-50-
<PAGE> 58
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Debentures, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Debentures, 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 information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted within 60 days after
December 31 in each calendar year, commencing with December 31, 1998.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange or self regulatory organization of which the Trustee has
received notice by the Company upon which the Debentures are listed and
also with the Commission. The Company will notify the Trustee in writing
whenever the Debentures are listed on any stock exchange or self-
regulatory organization.
SECTION 7.4 Reports by Company. The Company shall file with the
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act, provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall continue to file with the Commission
and provide the Trustee and Holders with the annual reports and the
information, documents and other reports which are specified in Sections 13 and
15(d) of the Securities Exchange Act of 1934. The Company also shall comply
with the other provisions of Trust Indenture Act Section 314(a).
-51-
<PAGE> 59
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America or
any State 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 any
Additional Interest) on all the Debentures and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance
with Article 13;
(b) 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;
(c) such consolidation, merger, conveyance, transfer or lease
is permitted under the Trust Agreement and Guarantee and does not give
rise to any breach or violation of the Trust Agreement or Guarantee; and
(d) 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 any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and the Trustee, subject to Section 6.1, may
rely upon such Officers Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into any other corporation, or
any conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1, the
successor corporation 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 corporation had
been named as the Company herein; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
-52-
<PAGE> 60
Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee, and, upon the Company Order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to a Company Order such provisions and any Debentures
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Debentures
thereafter to be issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of or notice to any Holder, 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:
(a) 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 Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company; or
(c) to add to covenants of the Company for the benefit of the
Holders of the Debentures or to surrender any right or power herein
conferred upon the Company; or
(d) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article 13; or
(e) to add any additional Events of Default; or
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with
-53-
<PAGE> 61
respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause shall not materially adversely
affect the interest of the Holders of Debentures and for so long as any
of the Preferred Securities shall remain outstanding, the holders of
such Preferred Securities; or
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee 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 Trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(h) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; or
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Debentures, and all other matters required pursuant
to Section 3.5 or otherwise necessary, desirable or appropriate in
connection with the issuance of Debentures to holders of Preferred
Securities in the event of a distribution of Debentures by the Trust if
a Special Event occurs and is continuing.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Debentures, 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 the Debentures under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 with
respect to the extension of the interest payment period of the
Debentures, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, the
Debentures, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or change the place of payment where, or the coin or currency
in which, any Debenture or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity thereof (or, in the case of redemption, on or after
the date fixed for redemption thereof), or
(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Indenture with respect to the
subordination of the Debentures in a manner adverse to such Holder; or
(c) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for any
such supplemental indenture, or the consent of
-54-
<PAGE> 62
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
(d) modify any of the provisions of this Section, Section 4.1,
Section 5.8, Section 5.13 or Section 10.6, except to increase any such
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Debenture affected thereby, or the consent of the holders of all the
Preferred Securities as the case may be; or
(e) modify the provisions in Article 12 of this Indenture with
respect to the subordination of Outstanding Debentures in a manner
adverse to the Holders thereof;
provided that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent of
the holders of at least a majority of the aggregate liquidation amount of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Indenture would require the consent of each Holder
of Debentures, no such consent will be given by the Property Trustee without
the prior consent of each holder of the Preferred Securities.
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 9.3 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 trust created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in conclusively relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 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 the
Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
-55-
<PAGE> 63
SECTION 9.5 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 9.6 Reference in Debentures to Supplemental Indentures.
Debentures 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
Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of the Debentures that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency. The Company will
maintain in the United States, an office or agency where Debentures may be
presented or surrendered for payment and an office or agency where Debentures
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be served.
The Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures may be presented or surrendered
for any or all of 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 the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3 Money for Debenture Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
the Debentures, it will, on or before each due date of the principal of (or
premium, if any) or interest on any of the Debentures, segregate
-56-
<PAGE> 64
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (or 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 failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of or interest on the Debentures, deposit
with a Paying Agent a sum sufficient to pay the principal (or 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 and premium (if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent 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:
(a) hold all sums held by it for the payment of the principal
of (or premium, if any) or interest on Debentures 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;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures) in the making of any payment of
principal (or premium, if any) or interest;
(c) 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; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a 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 such sums were held by the
Company or such Paying Agent, and, upon such payment by the Company or any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (or premium,
if any) or interest on any Debenture and remaining unclaimed for two years
after such principal (or premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request,
after all payments owing the Trustee have been paid, to the Company, or (if
then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as
-57-
<PAGE> 65
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.
SECTION 10.4 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 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 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 10.5 Statement as to Compliance. The Company shall
deliver to the Trustee, within 120 days after the end of each calendar year of
the Company an Officers' Certificate (signed by at least one of the officers
referred to in Section 314(a)(4) of the Trust Indenture Act) covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge. For the purpose of this Section 10.5, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 10.6 Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any covenant or condition set forth
in this Article 10, if before or after the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Debentures, 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 in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.7 Additional Sums. In the event that (a) the Property
Trustee is the Holder of all of the Outstanding Debentures, (b) a Tax Event in
respect of the Trust shall have occurred and be continuing and (c) the Company
shall not have (i) redeemed the Debentures pursuant to Section 11.7 or 11.8 or
(ii) dissolved the Trust pursuant to Section 9.2(b) of the Trust Agreement, the
Company shall pay to the Trust (and its permitted successors or assigns under
the Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered Holder of the Debentures, such additional amounts
as may be necessary in order that the amount of distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and payable by
the Trust on the Preferred Securities and Common Securities that at any time
remain outstanding in accord with the terms thereof shall not be reduced as a
result of any Additional Taxes (the "Additional Sums"). Whenever in this
Indenture or the Debentures there is a reference in any
-58-
<PAGE> 66
context to the payment of principal of (or premium, if any) or interest on the
Debentures, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, provided, however, that the extension of an
interest payment period pursuant to Section 3.11 of the Debentures shall not
extend the payment of any Additional Sums that may be due and payable during
such interest payment period.
SECTION 10.8 Additional Covenants. The Company covenants and
agrees with each Holder of Debentures that so long as the Debentures are
outstanding, if (i) there shall have occurred any event of which the Company
has actual knowledge that (A) with the giving of notice or the lapse of time or
both, would constitute an Event of Default hereunder and (B) in respect of
which the Company shall not have taken reasonable steps to cure, (ii) the
Company shall be in default with respect to its payment of any obligations
under the Guarantee or (iii) the Company shall have given notice of its
selection of an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing, then the Company shall not, and shall cause any Subsidiary not to,
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (y) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (1) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the
Company where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
dividend, redemption, interest, principal or guarantee payment is being made,
(2) redemptions or purchases of any rights pursuant to any Rights Agreement and
the declaration of a dividend of such rights or the issuance of preferred stock
under such plans in the future, (3) payments under the Guarantee, (4) purchases
of Company Common Stock related to the issuance of Company Common Stock under
any of the Company's benefit plans for its directors, officers or employees,
(5) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one series or class of the Company's capital stock
for another series or class of the Company's capital stock and (6) the purchase
of fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged).
The Company also covenants with each Holder of the Debentures (i)
that for so long as Preferred Securities are outstanding not to convert the
Debentures except pursuant to a notice of conversion delivered to the
Conversion Agent by a holder of Preferred Securities and (ii) to maintain
directly or indirectly 100% ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (iii) not to
voluntarily terminate, wind-up, liquidate or dissolve the Trust, except (a) in
connection with a distribution of the Debentures to the holders of Preferred
-59-
<PAGE> 67
Securities in dissolution of the Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iv) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement to cause the Trust to remain a business trust and not to be
classified as an association taxable as a corporation for United States Federal
income tax purposes.
SECTION 10.9 Payment of Expenses of the Trust. In connection
with the offering, sale and issuance of the Debentures to the Property Trustee
and in connection with the sale of the Preferred Securities by the Trust, the
Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Trust Securities (as defined in the
Underwriting Agreement), including commissions, discounts and expenses
payable pursuant to the Underwriting Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section
6.7 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Preferred Securities) of the Trust, pay
for all costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Preferred Securities (including
commissions, discounts and expenses in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the
acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Debentures shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of Debentures to be
redeemed.
-60-
<PAGE> 68
SECTION 11.2 Selection of Debentures to Be Redeemed. If less
than all the Debentures are to be redeemed, the particular Debentures to be
redeemed shall be selected not more than 45 days prior to the Redemption Date
by the Trustee from the Outstanding Debentures not previously called for
redemption, by lot or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of the Debentures Outstanding, provided that the
unredeemed portion of the principal amount of the Debentures be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and 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 Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 11.3 Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not later than the thirtieth
(30th) day, and not earlier than the sixtieth (60th) day, prior to the date
fixed for redemption, to each Holder of Debentures to be redeemed, at the
address of such Holder as it appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be
redeemed (the "Redemption Price");
(c) if less than all Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Debentures to be
redeemed (including, if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture or portion thereof, and
that upon deposit with the Paying Agent interest thereon, if any, shall
cease to accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be
surrendered for payment of the redemption price at which the Debentures
are to be redeemed;
(f) that a Holder of Debentures who desires to convert
Debentures called for redemption must satisfy the requirements for
conversion contained in the Debentures, the
-61-
<PAGE> 69
then existing Conversion Price, and the date and time when the option to
convert shall expire; and
(g) the record date for the determination of holders entitled
to receive payment of any interest payable, as provided in Section 11.5.
Notice of redemption of Debentures to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.4 Deposit of Redemption Price. Prior to 12:00 noon,
New York City time, on the Redemption Date specified in the notice of
redemption given as provided in Section 11.3, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 4.2) an
amount of money sufficient to redeem on the Redemption Date all the Debentures
so called for redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any
money deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Debenture shall (subject to any right
of the Holder of such Debenture or any Predecessor Debenture to receive
interest as provided in the last paragraph of Section 3.7) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 11.5 Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 11.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, including any accrued interest (and any
Additional Interest) thereon, and from and after such date (unless the Company
shall default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, provided, however, that installments of interest on Debentures
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Debentures, or one of more Predecessor Debentures,
registered as such at the close of business on the relevant Regular Record
Dates or Special Record Dates, as the case may be, according to their terms and
the provisions of Section 3.7. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price 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), except that, if such Business Day is in the next succeeding
calendar year, such
-62-
<PAGE> 70
payment shall be made on the immediately preceding Business Day, with the same
force and effect as if made on such date. Payment of the Redemption Price shall
be made to the Holders of such Debentures as they appear on the Securities
Register for the Debentures on the relevant record date, which shall be the
date which is the fifteenth (15th) day (whether or not a Business Day)
preceding such Redemption Date.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 11.6 Debentures Redeemed in Part. In the event of any
redemption in part, the Company shall not be required to (i) issue, register
the transfer of or exchange any Debenture during a period beginning at 9:00
a.m. (New York City time) 15 Business Days before any selection for redemption
of Debentures and ending at 5:00 p.m. (New York City time) on the earliest date
in which the relevant notice of redemption is deemed to have been given to all
Holders of Debentures to be so redeemed and (ii) register the transfer of or
exchange any Debentures so selected for redemption, in whole or in part, except
for the unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be
surrendered at the 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 make available for delivery to
the Holder of such Debenture without service charge, a new Debenture or
Debentures, 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 Debenture so surrendered. Each Debenture shall be
subject to partial redemption only in the amount of $50 or integral multiples
thereof.
The Debentures are not entitled to the benefit of any Sinking or
like fund.
SECTION 11.7 Mandatory Redemption. Upon (i) repayment at
maturity or (ii) as a result of acceleration upon the occurrence and
continuation of an Event of Default, the Company shall redeem the Outstanding
Debentures, in whole but not in part, at a redemption price equal to 100% of
the principal amount of such Debentures plus any accrued and unpaid interest,
including any Additional Interest, to the date fixed for redemption.
SECTION 11.8 Optional Redemption. Except as set forth below, on
and after ________ __, ____and subject to the next succeeding sentence, the
Company shall have the right, at any time and from time to time, to redeem the
Debentures, in whole or in part, upon notice given as set forth in Section 11.3
during the twelve month periods beginning on __________ in each of the
following years at the indicated Redemption Price (expressed as a percentage of
the principal
-63-
<PAGE> 71
amount of the Debentures being redeemed), together with any accrued but unpaid
interest on the portion being redeemed:
<TABLE>
<CAPTION>
Redemption Price Redemption Price
Year (% of principal amount) Year (% of principal amount)
---- ----------------------- ---- -----------------------
<S> <C> <C> <C>
</TABLE>
The Company may not redeem the Debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding Debentures
for all quarterly interest periods terminating on or prior to the giving of
notice of the Redemption Date.
If a Tax Event shall occur and be continuing, the Company 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 and (ii) ________ __, ____, at a
Redemption Price equal to the principal amount of such Debentures plus any
accrued and unpaid interest, including Additional Interest, to the date fixed
for such redemption.
SECTION 11.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to dissolve
the Trust and cause the Debentures to be distributed to the holders of
the Preferred Securities in dissolution of the Trust after satisfaction
of liabilities to creditors of the Trust as provided by applicable law.
(b) If a Special Event in respect of the Trust shall occur and
be continuing, the Company shall give the Property Trustee notice of the
same. If a Special Event in respect of the Trust shall occur and be
continuing, the Trust Agreement requires the Property Trustee to direct
the Conversion Agent (as defined in the Trust Agreement) to exchange all
outstanding Trust Securities for the Debentures having a principal
amount equal to the aggregate liquidation amount of the Trust Securities
to be exchanged with accrued interest in an amount equal to any unpaid
distributions (including any Additional Amounts) on the Trust Securities
provided that, in the case of a Tax Event that shall have occurred and
be continuing, the Company shall have the right to direct the Property
Trustee that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall
-64-
<PAGE> 72
have elected to pay any Additional Sums such that the amounts received
by holders of the Trust Securities that remain outstanding are not
reduced as a result of such Tax Event, and shall not have revoked any
such election or failed to make such payments or (ii) if the Company
shall instead elect to redeem the Debentures, in whole or in part, in
the manner set forth in Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Debentures are hereby expressly made junior and subordinate and
subject in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt. Notwithstanding
the foregoing, any and all amounts payable to the Trustee pursuant to Section
6.7 are not subject to the provisions of Article 12.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment or distribution of assets of the Company to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt), if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or Debentures
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, but not including
any payments that are made from funds on deposit pursuant to Section
4.1(a)(ii)(B) or funds on deposit for the redemption of Debentures for which
notice of Redemption has been given and the applicable Redemption Date has
passed, such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), in respect of principal of (or premium, if any) or
interest (including any Additional Interest, if any) on the Debentures or on
account of the purchase or other acquisition of Debentures by the Company or
any Subsidiary and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof any payment or distribution of
any kind of character, whether in cash, property
-65-
<PAGE> 73
or Debentures, including any Junior Subordinated Payment, which may be payable
or deliverable in respect of the Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Debenture shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company, as reorganized
or readjusted, or securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially the same extent as the Debentures are so subordinated as provided
in this Article. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties and assets as
an entirety to another Person or the liquidation or dissolution of the Company
following the sale 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 8 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 sale such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, or sale comply
with the conditions set forth in Article 8.
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of
Debentures. In the event that the Debentures are declared due and payable
before their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time the Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive any payment or distribution of any kind or
character, whether in cash, properties or securities (including any Junior
Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary.
-66-
<PAGE> 74
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known, as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Debt, or in the event that any event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or such event or default, then no payment or distribution of any kind
or character, whether in cash, properties or Debentures (including any Junior
Subordinated Payment) shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest), if any,
on the Debentures or on account of the purchase or other acquisition of
Debentures by the Company or any Subsidiary other than payments made from funds
on deposit pursuant to Section 4.1(a)(ii)(B) or from funds on deposit for the
redemption of Debentures for which notice of redemption has been given and the
Redemption Date has passed.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted If No Default. Nothing contained
in this Article or elsewhere in this Indenture or in any of the Debentures
shall prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 12.2 or under the conditions described in
Sections 12.3 and 12.4, from making payments at any time of principal of (or
premium, if any) or interest on the Debentures, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (or premium, if any) or interest
-67-
<PAGE> 75
(including any Additional Interest) on the Debentures or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, a
Responsible Officer of the Trustee did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, the Holders of the Debentures shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to Senior Debt of the Company to substantially the same extent
as the Debentures are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the holders of Senior
Debt by Holders of the Debentures or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Debt, and the Holders of the
Debentures, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 12.7 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 Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures 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 Debentures and
creditors of the Company other than their rights in relation to the holders of
Senior Debt, or (c) prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 12.8 Trustee to Effectuate Subordination. Each Holder of
a Debenture by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
-68-
<PAGE> 76
SECTION 12.9 No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt 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 that any such holder may have or be otherwise charged with.
SECTION 12.10 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures. 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 Debentures, unless and until the Trustee shall
have received written notice thereof from the Company or a person representing
itself as a holder of Senior Debt or from any trustee, agent or representative
therefor (whether or not the facts contained in such notice are true).
SECTION 12.11 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 Article
6, and the Holders of the Debentures shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in
which a 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 Debentures, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Debt 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 12.12 Trustee Not Fiduciary for Holders of Senior Debt.
With respect to the holders of the Senior Debt of the Company, the Trustee
undertakes to perform or observe only such of its obligations and covenants as
are set forth in this Article 12, and no implied covenants or obligations with
respect to the holders of such Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Debt and, subject to the provisions of Section
6.3, the Trustee shall not be liable to the holder of any Senior Debt if it
shall pay over or deliver to the Holders, the Company, or any other person,
money or assets to which any holder of such Senior Debt shall be entitled to by
virtue of this Article 12 or otherwise.
SECTION 12.13 Rights of Trustee as Holder of Senior Debt;
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 Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and, subject to the requirements of the Trust
Indenture Act, nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
-69-
<PAGE> 77
SECTION 12.14 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 intent and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment.
For the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures,
and (b) the payment, issuance or delivery of cash (including any payments for
fractional shares), property or securities (other than junior securities) upon
conversion or exchange of a Debenture shall be deemed to constitute payment on
account of the principal of such security. For the purpose of this Section, the
term "junior securities" means (i) shares of any stock of any class of the
Company and (ii) securities of the Company which are subordinated in right of
payment to all Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Debentures are so subordinated as provided in this
Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights. Subject to and upon compliance
with the provisions of this Article, the Debentures are convertible, at the
option of the Holder, at any time prior to the redemption or maturity, into
fully paid and nonassessable shares of Company Common Stock at an initial
conversion rate of ________ shares of Company Common Stock for each $50 in
aggregate principal amount of Debentures (equal to a conversion price of
approximately $______ per share of Company Common Stock), subject to adjustment
as described in this Article 13 (as adjusted, the "Conversion Price"). A Holder
of Debentures may convert any portion of the principal amount of the Debentures
into that number of fully paid and nonassessable shares of Company Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) obtained
by dividing the principal amount of the Debentures to be converted by the
Conversion Price. In case a Debenture or portion thereof is called for
redemption, such conversion right in respect of the Debenture or portion so
called shall expire at the close of business on the Redemption Date, unless the
Company defaults in making the payment due upon redemption.
SECTION 13.2 Conversion Procedures.
(a) In order to convert all or a portion of the Debentures,
the Holder thereof shall deliver to the Property Trustee, as conversion
agent or to such other agent appointed for such purposes (the
"Conversion Agent"), an irrevocable Notice of Conversion setting forth
the
-70-
<PAGE> 78
principal amount of Debentures to be converted, together with the name
or names, if other than the Holder, in which the shares of Company
Common Stock should be issued upon conversion and, if such Debentures
are definitive Debentures, surrender to the Conversion Agent the
Debentures to be converted, duly endorsed or assigned to the Company or
in blank. In addition, a holder of Preferred Securities may exercise its
right under the Trust Agreement to convert such Preferred Securities
into Company Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called
for by the preceding sentence and directing the Conversion Agent (i) to
exchange such Preferred Security for a portion of the Debentures held by
the Trust (at an exchange rate of $50 principal amount of Debentures for
each Preferred Security) and (ii) to immediately convert such
Debentures, on behalf of such holder, into Company Common Stock pursuant
to this Article 13 and, if such Preferred Securities are in definitive
form, surrendering such Preferred Securities, duly endorsed or assigned
to the Company or in blank. So long as any Preferred Securities are
outstanding, the Trust shall not convert any Debentures except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a holder
of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the
Holder of record on the Regular Record Date will be entitled to receive
the interest paid on the subsequent Interest Payment Date on the portion
of Debentures to be converted notwithstanding the conversion thereof
prior to such Interest Payment Date. Except as otherwise provided in the
immediately preceding sentence, in the case of any Debenture which is
converted, interest whose Stated Maturity is on or after the date of
conversion of such Debenture shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the Debentures
being converted, which shall be deemed to be paid in full. Debentures
submitted for conversion prior to the expiration of conversion rights as
provided in Section 13.3 shall be deemed to have been effected
immediately prior to the close of business on the day on which the
Notice of Conversion was received (the "Conversion Date") by the
Conversion Agent from the Holder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion
rights under the Trust Agreement, as the case may be. The Person or
Persons entitled to receive Company Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date and such
Person or Persons will cease to be a record Holder or record Holders of
the Debentures on that date. As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver at the office of
the Conversion Agent, unless otherwise directed by the Holder or holder
in the Notice of Conversion, a certificate or certificates for the
number of full shares of Company 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. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
-71-
<PAGE> 79
(b) The Company's delivery upon conversion of the fixed number
of shares of Company Common Stock into which the Debentures are
convertible (together with the cash payment, if any, in lieu of
fractional shares) shall be deemed to satisfy the Company's obligation
to pay the principal amount at Maturity of the portion of Debentures so
converted and any unpaid interest (including Additional Interest)
accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Company Common Stock will be
issued as a result of conversion, but in lieu thereof, the Company shall
pay to the Conversion Agent a cash adjustment in an amount equal to the
same fraction of the Current Market Price with respect to such
fractional interest on the date on which the Debentures or Preferred
Securities, as the case may be, were duly surrendered to the Conversion
Agent for conversion, and the Conversion Agent in turn will make such
payment, if any, to the Holder of the Securities or the holder of the
Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part
only, a new Debenture or Debentures for the unconverted portion thereof
will be issued in the name of the Holder thereof upon the cancellation
of the Debenture converted in part in accordance with Section 3.5.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of
Preferred Securities (in the exchange of Preferred Securities for
Debentures) and as agent of the Holders of Debentures (in the conversion
of Debentures into Company Common Stock), as the case may be, directing
it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Debentures held by the Trust from time
to time for Preferred Securities in connection with the conversion of
such Preferred Securities in accordance with this Article 13 and (ii) to
convert all or a portion of the Debentures into Company Common Stock and
thereupon to deliver such shares of Company Common Stock in accordance
with the provisions of this Article 13 and to deliver to the Trust a new
Debenture or Debentures for any resulting unconverted principal amount.
(f) The Company shall at all times reserve and keep available
out of its authorized and unissued Company Common Stock, solely for
issuance upon the conversion of the Debentures, such number of shares of
Company Common Stock as shall from time to time be issuable upon the
conversion of all the Debentures then outstanding. Notwithstanding the
foregoing, the Company shall be entitled to deliver upon conversion of
Debentures shares of Company Common Stock reacquired and held in the
treasury of the Company (in lieu of the issuance of authorized and
unissued shares of Company Common Stock) so long as any such treasury
shares are free and clear of all liens, charges, security interests or
encumbrances. Whenever the Company issues shares of Company Common Stock
upon conversion of Debentures, and the Company has in effect at such
time a stock purchase rights agreement ("Rights Agreement") under which
holders of Company Common
-72-
<PAGE> 80
Stock are issued rights ("Rights") entitling the holders under certain
circumstances to purchase an additional share or shares of stock, the
Company will issue, together with each such share of Company Common
Stock, such number of Rights (which number may be a fraction) as shall
at that time be issuable with a share of Company Common Stock pursuant
to such stock purchase rights agreement. Any shares of Company Common
Stock issued upon conversion of the Debentures shall be duly authorized,
validly issued and fully paid and nonassessable. The Conversion Agent
shall deliver the shares of Company Common Stock received upon
conversion of the Debentures to the converting Holder free and clear of
all liens, charges, security interests and encumbrances, except for
United States withholding taxes. The Company shall use its reasonable
best efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or
qualification of Company Common Stock (and all requirements to list
Company Common Stock issuable upon conversion of Debentures that are at
the time applicable), in order to enable the Company to lawfully issue
Company Common Stock upon conversion of the Debentures and to lawfully
deliver Company Common Stock to each Holder upon conversion of the
Debentures.
(g) The Company will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Company Common Stock
on conversion of Debentures. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Company Common Stock in a name
other than that in which the Debentures so converted were registered,
and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Conversion Agent the amount of any
such tax, or has established to the satisfaction of the Conversion Agent
that such tax has been paid.
(h) Nothing in this Article 13 shall limit the requirement of
the Company to withhold taxes pursuant to the terms of the Debentures or
as set forth in this Agreement or otherwise require the Trustee or the
Company to pay any amounts on account of such withholdings.
SECTION 13.3 Expiration of Conversion Rights. The conversion
rights of Holders of Debentures shall expire at the close of business on the
date set for redemption of the Debentures upon the redemption or Stated
Maturity of the Debentures.
SECTION 13.4 Conversion Price Adjustments. The conversion price
shall be subject to adjustment (without duplication) from time to time as
follows:
(a) In case the Company shall, while any of the Debentures are
Outstanding, (i) pay a dividend or make a distribution with respect to
its Company Common Stock exclusively in shares of Company Common Stock,
(ii) subdivide its outstanding shares of Company Common Stock, (iii)
combine its outstanding shares of Company Common Stock into a smaller
number of shares or (iv) issue by reclassification of its shares of
Company
-73-
<PAGE> 81
Common Stock any shares of capital stock of the Company, the conversion
privilege and the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Debentures thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned
immediately following such action had such Debentures been converted
immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date
in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if
a record date shall have been established for such event). If, as a
result of an adjustment made pursuant to this subsection (a), the Holder
of any Debenture thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes or series of capital
stock of the Company, the Board of Directors (whose determination shall
be conclusive and shall be described in a Board Resolution filed with
the Trustee) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes or series of capital
stock. In the event that such dividend, distribution, subdivision,
combination or issuance is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such record date had not been fixed.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Company
Common Stock entitling them (for a period expiring within 45 days after
the record date for the determination of stockholders entitled to
receive such rights or warrants) to subscribe for or purchase shares of
Company Common Stock at a price per share less than the Current Market
Price per share of Company Common Stock on such record date, the
Conversion Price for the Debentures shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of issuance of such rights or
warrants by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered for subscription
or purchase would purchase at such Current Market Price, and of which
the denominator shall be the number of shares of Company Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of Company Common Stock offered for
subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants. For the purposes of this
subsection, the number of shares of Company Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company. The Company shall not issue any rights or warrants in respect
of shares of Company Common Stock held in the treasury of the Company.
In case any rights or warrants referred to in this subsection in respect
of which an adjustment shall have been made shall expire unexercised
within 45 days after the same shall have been distributed or issued by
the Company, the Conversion Price shall be readjusted at the time of
such expiration to the Conversion Price that would have been in
-74-
<PAGE> 82
effect if no adjustment had been made on account of the distribution or
issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subparagraph, in case
the Company shall, by dividend or otherwise, distribute to all holders
of its Company Common Stock evidences of its indebtedness, shares of any
class or series of capital stock, cash or assets (including securities,
but excluding any rights or warrants referred to in subparagraph (b),
any dividend or distribution paid exclusively in cash and any dividend
or distribution referred to in subparagraph (a) of this Section 13.4),
the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph (c) by a fraction of which the
numerator shall be the Current Market Price per share of Company Common
Stock on the date fixed for the payment of such distribution (the
"Reference Date") less the fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors), on the
Reference Date, of the portion of the evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one share
of Company Common Stock and the denominator shall be such Current Market
Price per share of Company Common Stock, such reduction to become
effective immediately prior to the opening of business on the day
following the Reference Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not occurred. For purposes of this
subparagraph (c), any dividend or distribution that includes shares of
Company Common Stock or rights or warrants to subscribe for or purchase
shares of Company Common Stock shall be deemed instead to be (i) a
dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Company Common
Stock or such rights or warrants (making any Conversion Price reduction
required by this subparagraph (c)) immediately followed by (ii) a
dividend or distribution of such shares of Company Common Stock or such
rights or warrants (making any further conversion price reduction
required by subparagraph (a) or (b)), except (A) the Reference Date of
such dividend or distribution as defined in this subparagraph shall be
substituted as (x) "the record date in the case of a dividend or other
distribution," and (y) "the record date for the determination of
stockholders entitled to receive such rights or warrants" and (z) "the
date fixed for such determination" within the meaning of subparagraphs
(a) and (b) and (B) any shares of Company Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the conversion price in subparagraph (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding
(i) all cash dividends, if the amount thereof does not exceed the per
share amount of the immediately preceding regular cash dividend (as
adjusted to reflect any of the events referred to in subparagraphs (a),
(b), (c), (d) or (e) of this Section) and (ii) all cash dividends, if
the annualized amount thereof per share
-75-
<PAGE> 83
of Company Common Stock does not exceed 12.5% of the Current Market
Price per share of Company Common Stock on the trading day immediately
preceding the date of declaration of such dividend), the Conversion
Price shall be reduced so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph (d) by a fraction of which the numerator shall be the
Current Market Price per share of Company Common Stock on the date fixed
for the payment of such distribution less the amount of cash so
distributed (excluding that portion of such distribution that does not
exceed 12.5% of the Current Market Price per share, determined as
provided above) applicable to one share of Company Common Stock and the
denominator shall be such Current Market Price per share of Company
Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the date fixed for the
payment of such distribution; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Company
Common Stock is equal to or greater than the Current Market Price per
share of Company Common Stock on the record date mentioned above
(excluding that portion of such distribution that does not exceed 12.5%
of the Current Market Price per share, determined as provided above), in
lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Debentures shall have the right to receive
upon conversion the amount of cash such Holder would have received had
such Holder converted each share of the Debentures immediately prior to
the record date for the distribution of the cash (less that portion of
such distribution that does not exceed 12.5% of the Current Market Price
per share, determined as provided above). In the event that such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the conversion price which would then be
in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of Company Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such
Subsidiary of consideration per share of Company Common Stock having a
fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration
Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds 110% of the
Current Market Price per share of Company Common Stock on the trading
day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the effectiveness of
the Conversion Price reduction contemplated by this subparagraph (e) by
a fraction of which the numerator shall be the number of shares of
Company Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time (including the Purchased Shares) (as
defined below) multiplied by the Current Market Price per share of
Company Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the
-76-
<PAGE> 84
aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") (excluding that
portion of such consideration that does not exceed 110% of the Current
Market Price per share) and (y) the product of the number of shares of
Company Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per share of Company Common
Stock on the trading day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that
such tender or exchange offer is not so made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(f) If the distribution date for any Rights of the Company
provided in any Rights Agreement occurs prior to the Conversion Date,
and a Holder of the Debentures who converts such Debentures after such
distribution date is not entitled to receive the Rights that would
otherwise be attached (but for the date of conversion) to the shares of
Company Common Stock received upon such conversion, then an adjustment
shall be made to the Conversion Price pursuant to clause (ii) of Section
13.4(a) as if the Rights were being distributed to Company Common
Stockholders of the Company immediately prior to such conversion. If
such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding reversing adjustment
shall be made to the Conversion Price, on an equitable basis, to take
account of such event.
(g) The Company shall have the right to reduce from time to
time the Conversion Price by any amount selected by the Company for any
period of at least 30 days, provided, that Company shall give at least
15 days' written notice of such reduction to the Trustee and the
Property Trustee. The Company may, at its option, make such reductions
in the Conversion Price, in addition to those set forth above in Section
13.4(a), as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Company Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for United States Federal income tax purposes.
(h) Notwithstanding anything to the contrary in this Section
13.4, no adjustment of the Conversion Price will be made upon the
issuance of any shares of Company Common Stock (or securities
convertible or exchangeable for Company Common Stock), except as
specifically provided above, including pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional
amounts in shares of Company Common Stock under any such plan, or the
issuance of any shares of Company Common Stock or options or rights to
purchase such shares pursuant to any present or future employee benefit
plan or program of the Company or pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security which does
not constitute an issuance to all holders of Company
-77-
<PAGE> 85
Common Stock of rights or warrants entitling holders of such rights or
warrants to subscribe for or purchase Company Common Stock at less than
the Current Market Price. Further, such issuances shall not be deemed to
constitute an issuance of Company Common Stock or exercisable,
exchangeable or convertible securities by the Company to which any of
the adjustment provisions described above applies. There shall also be
no adjustment of the Conversion Price in case of the issuance of any
stock (or securities convertible into or exchangeable for stock) of the
Company except as specifically described in this Article 13. No
adjustment in the Conversion Price will be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price, but any adjustment that would otherwise be required to
be made shall be carried forward and taken into account in a subsequent
adjustment.
(i) If any action would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above, only
one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holder of the
Debentures.
SECTION 13.5 Fundamental Change.
(a) In the event that the Company is a party to any
transaction (including, without limitation, a merger other than a merger
that does not result in a reclassification, conversion, exchange or
cancellation of Company Common Stock), consolidation, sale of all or
substantially all of the assets of the Company, recapitalization or
reclassification of Company Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination of Company Common
Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which
shares of Company Common Stock shall be converted into the right to
receive, or shall be exchanged for, (i) in the case of any Transaction
other than a Transaction involving a Common Stock Fundamental Change
(and subject to funds being legally available for such purpose under
applicable law at the time of such conversion), securities, cash or
other property, each Debenture shall thereafter be convertible into the
kind and, in the case of a Transaction which does not involve a
Fundamental Change, amount of securities, cash and other property
receivable upon the consummation of such Transaction by a holder of that
number of shares of Company Common Stock into which a Debenture was
convertible immediately prior to such Transaction, or (ii) in the case
of a Transaction involving a Common Stock Fundamental Change, common
stock, each Debenture shall thereafter be convertible (in the manner
described herein) into common stock of the kind received by holders of
Company Common Stock (but in each case after giving effect to any
adjustment discussed in paragraphs (b) and (c) relating to a Fundamental
Change if such Transaction constitutes a Fundamental Change). The
holders of Debentures or Preferred Securities will have no voting rights
with respect to any Transaction.
-78-
<PAGE> 86
(b) If any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental
Change as described in paragraph (c) below. In addition, in the event of
a Common Stock Fundamental Change, each Debenture shall be convertible
solely into common stock of the kind received by holders of Company
Common Stock as a result of such Common Stock Fundamental Change.
(c) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Debentures will thereupon become the
lower of (A) the Conversion Price in effect immediately prior to
such Non-Stock Fundamental Change, but after giving effect to any
other prior adjustments effected pursuant to the preceding
paragraphs, and (B) the result obtained by multiplying the
greater of the Applicable Price or the then applicable Reference
Market Price by a fraction of which the numerator will be $50 and
the denominator will be (x) the amount of the Redemption Price
for one Debenture if the Redemption Date were the date of such
Non-Stock Fundamental Change (or, for the period commencing on
the first date of original issuance of the Debentures and through
________ __, ____, and the twelve-month periods commencing
________ __, ____, _______ __, ____ and _______ __, ____, the
product of ______%, _______%, _____% and _____%, respectively,
multiplied by $50) plus (y) any then-accrued and unpaid interest
on one Debenture; and
(ii) in the case of a Common Stock Fundamental Change,
the Conversion Price of the Debentures in effect immediately
prior to such Common Stock Fundamental Change, but after giving
effect to any other prior adjustments effected pursuant to the
preceding paragraphs, will thereupon be adjusted by multiplying
such Conversion Price by a fraction of which the numerator will
be the Purchaser Stock Price and the denominator will be the
Applicable Price; provided, however, that in the event of a
Common Stock Fundamental Change in which (A) 100% of the value of
the consideration received by a holder of common stock is common
stock of the successor, acquiror, or other third party (and cash,
if any, is paid only with respect to any fractional interests in
such common stock resulting from such Common Stock Fundamental
Change) and (B) all of common stock will have been exchanged for,
converted into, or acquired for common stock (and cash with
respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price of the Debentures in
effect immediately prior to such Common Stock Fundamental Change
will thereupon be adjusted by multiplying such Conversion Price
by a fraction of which the numerator will be one and the
denominator will be the number of shares of common stock of the
successor, acquiror, or other third party received by a holder of
one share of common stock as a result of such Common Stock
Fundamental Change.
-79-
<PAGE> 87
SECTION 13.6 Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price
and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted conversion price
and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee,
the Conversion Agent and the transfer agent for the Preferred Securities
and the Debentures; and
(b) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Preferred
Securities and the Debentures at their last addresses as they appear
upon the stock transfer books of the Company and the Trust and the
Securities Registrar.
SECTION 13.7 Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend
payable in shares of Company Common Stock or (B) a dividend payable in
cash that would not require an adjustment pursuant to Section 13.4(c) or
(d) or (ii) authorize a tender or exchange offer that would require an
adjustment pursuant to Section 13.4(e);
(b) the Company shall authorize the granting to all holders of
Company Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or series or of any other rights or
warrants;
(c) of any reclassification of Company Common Stock (other
than a subdivision or combination of the outstanding Company Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to
which the Company is a party and for which approval of stockholders of
the Company shall be required (except solely as a result of the rules of
the New York Stock Exchange or the NASD), or of the sale or transfer of
all or substantially all of the assets of the Company or of any
compulsory share exchange whereby Company Common Stock is converted into
other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under
the Trust Agreement, cause to be filed with the transfer agent for the
Preferred Securities, and shall cause to be mailed to the holders of record of
the Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (B) shall cause to be mailed to all
Holders at their last addresses
-80-
<PAGE> 88
as they shall appear in the Security Register, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Company Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Company Common Stock of record shall be entitled to exchange their
shares of Company Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up (but no failure to mail
such notice or any defect therein or in the mailing thereof shall affect the
validity of the corporate action required to be specified in such notice).
SECTION 13.8 Certain Additional Rights. In case the Company
shall, by dividend or otherwise, declare or make a distribution on its Company
Common Stock referred to in Section 13.4(c) or 13.4(d) (including, without
limitation, dividends or distributions referred to in the last sentence of
Section 13.4(c)), the Holders of the Debentures, upon the conversion thereof
subsequent to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment (such that the Conversion
Price is not adjusted with respect to such distribution) in respect of such
distribution, shall also be entitled to receive for each share of Company
Common Stock into which the Debentures are converted, the portion of the shares
of Company Common Stock, rights, warrants, evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of
Company Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a resolution of the Board of Directors)
with respect to all Holders so converting, the Company may, in lieu of
distributing to such Holder any portion of such distribution not consisting of
cash or securities of the Company, pay such Holder an amount in cash equal to
the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors). If any conversion of Debentures
described in the immediately preceding sentence occurs prior to the payment
date for a distribution to holders of Company Common Stock which the Holder of
Debentures so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due bill for the shares of Company Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash or assets to which
such Holder is so entitled, provided, that such due bill (i) meets any
applicable requirements of the principal national securities exchange or other
market on which Company Common Stock is then traded and (ii) requires payment
or delivery of such shares of Company Common Stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets no later than the date
of payment or delivery thereof to holders of shares of Company Common Stock
receiving such distribution.
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion.
-81-
<PAGE> 89
(a) Shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities shall bear
such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred
Security, then the Person in whose name such shares of Company Common
Stock are to be registered must deliver to the Conversion Agent a
certificate satisfactory to the Company and signed by such Person, as to
compliance with the restrictions on transfer applicable to such
Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of the
Holder of such Preferred Securities shares of Company Common Stock
issued upon conversion of any such Debenture in respect thereof not so
accompanied by a properly completed certificate.
SECTION 13.10 Trustee Not Responsible for Determining Conversion
Price or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any Debenture or to any
holder of a Preferred Security to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed,
in making the same. Neither the Trustee nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind of account) of
any shares of Company Common Stock or of any securities or property, which may
at any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Company Common Stock or stock
certificates or other securities or property upon the surrender of any
Debenture for the purpose of conversion, or, except as expressly herein
provided, to comply with any of the covenants of the Company contained in
Article 10 or this Article 13.
* * * *
-82-
<PAGE> 90
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.
NEWFIELD EXPLORATION COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
-----------------------------
FIRST UNION NATIONAL BANK,
as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
-83-
<PAGE> 1
EXHIBIT 4.23
================================================================================
GUARANTEE AGREEMENT
Newfield Exploration Company
and
First Union Trust Company, National Association
Relating to the Preferred Securities of
Newfield Financial Trust __
Dated as of ________ __, ____
================================================================================
<PAGE> 2
CROSS REFERENCE TABLE*
<TABLE>
<CAPTION>
SECTION OF TRUST SECTION OF
INDENTURE ACT OF GUARANTEE
1939, AS AMENDED AGREEMENT
- ---------------- ---------
<S> <C>
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)
</TABLE>
- ----------
* 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.
-i-
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE 1 DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2 TRUST INDENTURE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.2 List of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.3 Reports by the Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.4 Periodic Reports to Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE 3 POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.1 Powers and Duties of the Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3.2 Certain Rights of Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 3.3 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE 4 GUARANTEE TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.1 Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee . . . . . . . . . . . . . . . 10
ARTICLE 5 GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 6 COVENANTS AND SUBORDINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.1 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 6.2 Certain Covenants of the Guarantor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE 7 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 8 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 8.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.5 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
-iii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of _________ __, ____, is executed
and delivered by Newfield Exploration Company, a Delaware corporation (the
"Guarantor"), and First Union National Bank, a national banking association, 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
Newfield Financial Trust __, a Delaware statutory business trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), 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 __________________ (_____________ if the over- allotment option is
exercised in full) of its _____% Convertible Quarterly Income Preferred
Securities (liquidation preference $50 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 Trust Agreement;
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 Trust Agreement) of the Guarantor which will be deposited
with First Union National Bank, as Property Trustee under the Trust Agreement,
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
WHEREAS, the Guarantor is also executing and delivering a guarantee
agreement (the "Common Securities Guarantee") in substantially identical terms
to this Guarantee for the benefit of the holders of the Common Securities (as
defined herein), except that if an event of default (as defined in the
Indenture (as defined herein)), has occurred and is continuing, the rights of
holders of the Common Securities to receive Guarantee Payments (as defined in
the Common Securities Guarantee) under the Common Securities Guarantee shall be
subordinated to the rights of Holders of Preferred Securities to receive
Guarantee Payments (as defined herein) under this Guarantee.
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.
-1-
<PAGE> 6
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
Trust Agreement 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
correlative to the foregoing.
"Common Securities" means the securities representing common
beneficial interests in the assets of the Issuer.
"Company 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,
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 Trust Agreement) 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, including 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 of the Issuer, unless
Debentures are distributed to the Holders, the lesser of (a) the aggregate of
the liquidation preference of $50 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 dissolution of the Issuer (in either case, the "Stockholder
Distribution").
-2-
<PAGE> 7
"Guarantee Trustee" means First Union National Bank, 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 Junior Convertible Subordinated Indenture, dated
as of _________ __, ____, as supplemented and amended between the Guarantor and
First Union National Bank, as trustee.
"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 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.
-3-
<PAGE> 8
"Responsible Officer" means, with respect to the Guarantee Trustee,
any officer assigned to the Trustee's Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Guarantee Agreement, and also, with respect to a particular matter, any other
officer, to whom such matter is referred because of such 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 2.1 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.
SECTION 2.2 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 January 15 and July 15 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 written 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.
-4-
<PAGE> 9
(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 2.3 Reports by the Guarantee Trustee. Within 60 days
after December 31 in each calendar year, commencing with December 31, 1998, 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 2.4 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; and such compliance
certificate of the Guarantor shall be delivered on or before 120 days after the
end of each calendar year.
SECTION 2.5 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 2.6 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 extend to any subsequent
or other default or Event of Default or impair any right consequent therefrom.
SECTION 2.7 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
actually known to a Responsible Officer of 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 fully 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
actual knowledge of any Event of Default unless the Guarantee Trustee
shall have received written notice, or a
-5-
<PAGE> 10
Responsible Officer charged with the administration of the Trust
Agreement shall have obtained written notice, of such Event of
Default.
SECTION 2.8 Conflicting Interests. The Trust Agreement 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 a
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 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:
-6-
<PAGE> 11
(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 no implied covenants or obligations shall be read
into this Guarantee Agreement against the Guarantee
Trustee; 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 of such
funds or liability is not reasonably assured to it under the
terms of this Guarantee Agreement or indemnity satisfactory to
it against such risk or liability is not reasonably assured
to it.
-7-
<PAGE> 12
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may conclusively 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 conclusively 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 written 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 and its officers, directors and agents 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 thereof as a
prudent person would exercise or use under the circumstances
in the conduct of his or her own affairs.
-8-
<PAGE> 13
(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, custodians,
nominees 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 written 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 fully 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. This indemnity shall
survive any removal of the Guarantee Trustee by the Guarantor or the
resignation by the Guarantee Trustee.
-9-
<PAGE> 14
ARTICLE 4
GUARANTEE TRUSTEE
SECTION 4.1 Guarantee Trustee; Eligibility.
(a) There shall at all times be a Guarantee Trustee which
shall:
(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.
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 and
the Guarantor shall pay the Guarantee Trustee all fees and expenses
until the day of removal.
(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
-10-
<PAGE> 15
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.
(e) No Guarantee Trustee shall be liable for the acts or
omissions of any successor Guarantor Trustee.
(f) Upon the removal or resignation of the Guarantee
Trustee, the Guarantor shall pay all amounts due and owing to such
Guarantee Trustee.
ARTICLE 5
GUARANTEE
SECTION 5.1 Guarantee. The Guarantor irrevocably and
unconditionally agrees 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
-11-
<PAGE> 16
the extension of any interest payment period on the Debentures as so
provided in 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.
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 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; and (iv)
if the Guarantee Trustee fails to enforce the Guarantee, 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.
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 Trust Agreement.
-12-
<PAGE> 17
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 as 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.
ARTICLE 6
COVENANTS AND SUBORDINATION
SECTION 6.1 Subordination. The Guarantee Agreement will
constitute an unsecured obligation of the Guarantor and will rank subordinate
and junior in right of payment to all liabilities of the Guarantor and pari
passu with the most senior preferred stock of the Guarantor, if any, now or
hereafter issued by the Company and with any guarantee now or hereafter entered
into by the Company in respect of any preferred or preference stock of any
Affiliate of the Guarantor.
SECTION 6.2 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 Trust Agreement) 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 Trust Agreement) in respect of the Preferred Securities and Common
Securities, the Guarantor will pay to the Issuer such Additional Sums.
(b) The Guarantor covenants and agrees that it will not,
and will not cause any subsidiary of the Guarantor to, (i) declare or
pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Guarantor's
capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed)
of the Guarantor that rank pari passu with or junior to the Debentures
(other than (a) any dividend, redemption, liquidation, interest,
principal or guarantee payment by the
-13-
<PAGE> 18
Guarantor where the payment is made by way of securities (including
capital stock) that rank pari passu with or junior to the securities
on which such dividend, redemption, interest, principal or guarantee
payment is being made, (b) redemptions or purchases of any rights
pursuant to any Rights Agreement (as defined in the Indenture) and the
declaration of a dividend of such rights or the issuance of preferred
stock under such plans in the future, (c) payments under this
Agreement, (d) purchases of Company Common Stock related to the
issuance of Company Common Stock under any of the Guarantor's benefit
plans for its directors, officers or employees, (e) as a result of a
reclassification of the Guarantor's capital stock or the exchange or
conversion of one series or class of the Guarantor's capital stock for
another series or class of the Guarantor's capital stock and (f) 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) if at such
time (i) there shall have occurred any event of which the Guarantor
has actual knowledge that (a) with the giving of notice or the 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, (ii) the
Guarantor shall be in default with respect to its payment of any
obligations under the Guarantee or (iii) the Guarantor shall have
given notice of its selection of an Extension Period (as defined in
the Indenture) with respect to the Debentures and shall not have
rescinded such notice, or such Extension Period, or any extension
thereof, shall be 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 dissolve the Issuer, except (a) in connection
with a distribution of the Debentures to the holders of the Preferred
Securities in dissolution of the Issuer or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the
Trust Agreement, (iii) to use its reasonable efforts, consistent with
the terms and provisions of the Trust Agreement, to cause the Issuer
to remain classified as a grantor trust and not as an association
taxable as a corporation for United States Federal income tax
purposes, (iv) for so 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 Trust Agreement)
by a Holder, (v) to maintain the reservation for issuance of the
number of shares of Company Common Stock that would be required from
time to time upon the conversion of all the Debentures then
outstanding, (vi) to deliver shares of Company Common Stock upon an
election by the Holders to convert such Preferred Securities into
Company Common Stock and (vii) to honor all obligations described
herein relating to the conversion or exchange of the Preferred
Securities into or for Company Common Stock or Debentures.
-14-
<PAGE> 19
ARTICLE 7
TERMINATION
SECTION 7.1 Termination. This Guarantee Agreement shall
terminate and be of no further force and effect upon (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 Trust
Agreement upon dissolution of the Issuer or (iv) upon the distribution, if any,
of Company Common Stock to the holders of the Preferred Securities in respect
of the conversion of all such holders' Preferred Securities into Company 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 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 Trust Agreement 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:
-15-
<PAGE> 20
Newfield Exploration Company
363 N. Sam Houston Parkway E., Suite 2020
Houston, Texas 77060
Phone No.: (281) 847-6000
Facsimile No.: (281) 405-4242
Attention: Vice President -- Planning and Administration
(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:
Newfield Financial Trust __
c/o Newfield Exploration Company
363 N. Sam Houston Parkway E., Suite 2020
Houston, Texas 77060
Phone No.: (281) 847-6000
Facsimile No.: (281) 405-4242
Attention: Vice President -- Planning and Administration
with a copy to:
First Union Trust Company, National Association
230 South Tryon Street, Ninth Floor
Charlotte, North Carolina 28288-1179
Phone No.:
Facsimile No.:
Attention: Corporate Trustee Administration Department
(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 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;
-16-
<PAGE> 21
(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.
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.
THIS GUARANTEE AGREEMENT is executed as of the day and year first
above written.
NEWFIELD EXPLORATION COMPANY
By:
Name:
Title:
FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION,
as Guarantee Trustee
By:
Name:
Title:
-17-
<PAGE> 1
EXHIBIT 5.1
[LETTERHEAD OF VINSON & ELKINS L.L.P.]
(713) 758-2222 (713) 758-2346
September 3, 1998
Newfield Exploration Company
363 N. Sam Houston Parkway, E., Suite 2020
Houston, Texas 77060
Ladies and Gentlemen:
We acted as counsel for Newfield Exploration Company, a Delaware
corporation (the "Company"), in connection with the registration by the Company,
Newfield Financial Trust I, a Delaware statutory business trust ("Trust I"), and
Newfield Financial Trust II, a Delaware statutory business trust ("Trust II"
and, together with Trust I, the "Trusts") under the Securities Act of 1933, as
amended (the "Securities Act"), of the offer and sale (a) by the Company from
time to time, pursuant to Rule 415 under the Securities Act, of (i) unsecured
debt securities, in one or more series, consisting of notes, debentures or other
evidences of indebtedness ("Debt Securities"), (ii) shares of preferred stock,
par value $.01 per share, of the Company in one or more series ("Preferred
Stock"), which may be issued in the form of depositary shares evidenced by
depositary receipts ("Depositary Shares"), (iii) shares of common stock, par
value $.01 per share, of the Company ("Common Stock"), (iv) warrants
("Warrants") to purchase Debt Securities, Preferred Stock, Depositary Shares or
Common Stock, (v) in addition to the Debt Securities, debentures (the "Trust
Debentures") that may be purchased by one or both of the Trusts with the
proceeds from the sale of preferred securities of the applicable Trust
("Preferred Securities") and (vi) guarantees by the Company of obligations of
the Trusts pursuant to Preferred Securities and (b) by the Trusts from time to
time pursuant to Rule 415 under the Securities Act of Preferred Securities
("Preferred Securities Guarantees"). The aggregate initial offering price of the
Debt Securities, Preferred Stock, Depositary Shares, Common Stock, Warrants,
Trust Debentures, Preferred Securities and Preferred Securities Guarantees
offered by the Company and the Trusts in any such offering (the "Securities")
will not exceed $275,000,000 or, if applicable, the equivalent thereof in any
other currency or currency unit. The Securities will be offered in amounts, at
prices and on terms to be determined in light of market conditions at the time
of sale and to be set forth in supplements to the Prospectus contained in the
Company's Form S-3 Registration Statement, as amended (the "Registration
Statement"), to which this opinion is an exhibit.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of (i) the Second Restated Certificate of Incorporation and
Restated Bylaws of the Company, each as amended to the date hereof, (ii) the
forms of Senior Indenture between the Company and First Union National Bank, as
trustee, (each a "Senior Debt Indenture") relating to either senior or senior
subordinated debt of the Company ("Senior Debt Securities") included as exhibits
to the Registration Statement, (iii) the form of Subordinated Indenture between
the Company and First Union National Bank, as trustee, (the "Subordinated Debt
Indenture") relating to subordinated debt of the Company ("Subordinated Debt
Securities") included as an exhibit to the Registration Statement, (iv) the
Certificate of Trust of Trust I dated August 28, 1998, (v) the Certificate of
Trust of Trust II dated August 28, 1998, (v) the Trust Agreement of Trust I,
dated August 28, 1998, among the Company, as depositor, and the trustees of
Trust I named therein, (vi) the Trust Agreement of Trust II, dated August 28,
1998, among the Company, as depositor, and the trustees of Trust II named
<PAGE> 2
Newfield Exploration Company
Page 2
September 3, 1998
therein, (vii) the forms of Amended and Restated Trust Agreement (each a "Trust
Agreement") with respect to each of the Trusts to be entered into among the
Company, as depositor, the trustees of the applicable Trust to be named therein
and the holders of Preferred Securities from time to time included as exhibits
to the Registration Statement, (viii) the forms of Preferred Securities
Guarantee Agreement (each a "Preferred Guarantee Agreement") to establish
Preferred Securities Guarantees included as exhibits to the Registration
Statement, (ix) the forms of Common Securities Guarantee Agreement (each a
"Common Guarantee Agreement"), (x) the forms of Junior Convertible Subordinated
Indenture (each a "Debenture Indenture") to be entered into between the Company
and First Union National Bank included as exhibits to the Registration
Statement, and (xi) such other certificates, instruments and documents as we
considered appropriate for purposes of the opinions hereafter expressed. In
addition, we reviewed such questions of law as we considered appropriate.
In connection with this opinion, we have assumed that (i) the
Registration Statement, and any amendments thereto (including post-effective
amendments), have become effective; (ii) a Prospectus Supplement will have been
prepared and filed with the Commission describing any Securities offered
thereby; (iii) all 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 applicable Prospectus Supplement; (iv) each
applicable Trust Agreement, Preferred Guarantee Agreement, Common Guarantee
Agreement and Indenture will be duly authorized, executed and delivered by the
parties thereto in substantially the form reviewed by us; (v) each person
signing each such Trust Agreement, Preferred Guarantee Agreement, Common
Guarantee Agreement and Indenture will have the legal capacity and authority to
do so; (vi) at the time of any offering or sale of any shares of Common Stock or
Preferred Stock, that the Company will have such number of shares of Common
Stock or Preferred Stock, as set forth in such offering or sale, authorized,
established (if applicable) and available for issuance; (vii) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto; and (viii) Securities issuable upon
conversion, exchange or exercise of any Securities being offered will have been
duly authorized, established (if appropriate) and reserved for issuance upon
such conversion, exchange or exercise (if appropriate).
Based upon the foregoing examination and review, we are of the opinion
that:
(i) When (a) the applicable Indenture has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "TIA"),
(b) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary action
to approve the issuance and terms of any Debt Securities, (c)
the terms of such Debt Securities and of their issuance and
sale have been duly established in conformity with the
applicable Indenture 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 requirements or restriction
<PAGE> 3
Newfield Exploration Company
Page 3
September 3, 1998
imposed by any court or governmental body having jurisdiction
over the Company, and (d) such Debt Securities have been duly
executed and authenticated in accordance with the applicable
Indenture and issued and sold as contemplated in the
Registration Statement, such Debt Securities will constitute
valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable
principles, and any shares of Common Stock issued upon
conversion of any such Debt Securities in accordance with the
terms of the applicable Indenture will be duly authorized,
validly issued, fully paid and nonassessable.
(ii) When (a) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary
corporate action to approve the issuance and sale of any
shares of Common Stock or of any series of Preferred Stock
(and Depositary Shares, if applicable), and (b) such shares
have been issued and sold as contemplated in the Registration
Statement, all such shares will be duly authorized, validly
issued, fully paid and nonassessable.
(iii) When (a) the Board of Directors of the Company (or a duly
authorized committee thereof) has taken all necessary
corporate action to approve the issuance and sale of any
Warrants, (b) the terms of such Warrants and of their issuance
and sale have been duly established in conformity with the
applicable Warrant Agreement 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 requirements or restrictions imposed by any
court or governmental body having jurisdiction over the
Company, and (c) such Warrants have been duly executed and
authenticated in accordance with the applicable Warrant
Agreement and issued and sold as contemplated in the
Registration Statement, (1) such Warrants will constitute
valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization,
moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable
principles, (2) any Debt Securities issued upon exercise of
any such Warrant will, subject to the qualifications set forth
in paragraph (i) above being met, constitute valid and legally
binding obligations of the Company, subject to bankruptcy,
insolvency (including, without limitation, all laws relating
to fraudulent transfers), reorganization, moratorium and
similar laws relating to or affecting creditors' rights
generally and to general equitable principles, (3) any shares
of Common Stock issued upon conversion of any such Debt
Securities will be duly authorized, validly issued, fully paid
and nonassessable and (4) any shares of Common Stock or
Preferred Stock (or Depositary Shares, if applicable) issued
upon exercise of any such Warrant will, subject to the
qualifications set forth in paragraph (ii) above being met, be
duly authorized, validly issued, fully paid and nonassessable.
<PAGE> 4
Newfield Exploration Company
Page 4
September 3, 1998
(iv) When (a) the applicable Debenture Indenture has been duly
qualified under the TIA, (b) the Board of Directors of the
Company (or a duly authorized committee thereof) has taken all
necessary corporate action to approve the issuance and terms
of any Trust Debentures, (c) such Trust Debentures have been
duly executed and authenticated in accordance with the
Debenture Indenture and issued and sold as contemplated in the
Registration Statement, such Trust Debentures will constitute
valid and legally binding obligations of the Company, subject
to bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganizations,
moratorium and similar laws relating to or affecting
creditors' rights generally and to general equitable
principles and (d) and any shares of Common Stock issued upon
conversion of any such Trust Debentures will, subject to the
qualifications in paragraph (ii) above being met, be duly
authorized, validly issued, fully paid and nonassessable.
(v) When (a) the applicable Preferred Guarantee Agreement has been
duly qualified under the TIA, and (b) the Board of Directors
of the Company (or a duly authorized committee thereof) has
taken all necessary corporate action to approve any Preferred
Securities Guarantees, such Preferred Securities Guarantees
will constitute valid and legally binding obligations of the
Company, subject to bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium and similar laws relating to or
affecting creditors' rights generally and to general equitable
principles.
The foregoing opinions are limited to the laws of the United States of
America and to the General Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name in the Prospectus forming a
part of the Registration Statement under the caption "Validity of Securities."
In giving this consent, we do not admit that we are within the category of
persons whose consent is required under Section 7 of the Securities Act and the
rules and regulations thereunder.
/s/ Vinson & Elkins L.L.P.
<PAGE> 1
EXHIBIT 5.2
[Letterhead of Richards, Layton & Finger]
September 3, 1998
Newfield Financial Trust I
c/o Newfield Exploration Company
363 N. Sam Houston Parkway E.,
Suite 2020
Houston, Texas 77060
Re: Newfield Financial Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for Newfield Exploration
Company, a Delaware corporation (the "Company"), and Newfield Financial Trust I,
a Delaware business trust (the "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 the Trust, dated as of August 28, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 28, 1998;
(b) The Trust Agreement of the Trust, dated as of August 28, 1998, by
and among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and D thereto) (the "Trust Agreement"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust, attached as an exhibit to the Registration Statement (as
defined below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the "Prospectus")
relating to
<PAGE> 2
Newfield Financial Trust I
September 3, 1998
Page 2
Preferred Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others with the Securities and Exchange Commission on or
about September 3, 1998; and
(e) A Certificate of Good Standing for the Trust, dated September 3,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) 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 the Trust
Agreement constitutes 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 Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or 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 creation, organization or formation, (iii) the 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 Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate, in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the
<PAGE> 3
Newfield Financial Trust I
September 3, 1998
Page 3
Trust Agreement, and as described in the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its 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 that 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. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities 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 Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
are 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 Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of 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 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger, P.A.
-----------------------------------
<PAGE> 1
EXHIBIT 5.3
[Letterhead of Richards, Layton & Finger]
September 3, 1998
Newfield Financial Trust II
c/o Newfield Exploration Company
363 N. Sam Houston Parkway E.,
Suite 2020
Houston, Texas 77060
Re: Newfield Financial Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for Newfield Exploration
Company, a Delaware corporation (the "Company"), and Newfield Financial Trust
II, a Delaware business trust (the "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 the Trust, dated as of August 28, 1998
(the "Certificate"), as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on August 28, 1998;
(b) The Trust Agreement of the Trust, dated as of August 28, 1998, by
and among the Company and the trustees of the Trust named therein;
(c) A form of Amended and Restated Trust Agreement of the Trust
(including Exhibits A, C and D thereto) (the "Trust Agreement"), to be entered
into among the Company, as depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
assets of the Trust, attached as an exhibit to the Registration Statement (as
defined below);
(d) Amendment No. 1 to the Registration Statement on Form S-3 (the
"Registration Statement"), including a preliminary prospectus (the "Prospectus")
relating to the
<PAGE> 2
Newfield Financial Trust II
September 3, 1998
Page 2
Preferred Securities of the Trust representing undivided beneficial
interests in the assets of the Trust (each, a "Preferred Security" and
collectively, the "Preferred Securities"), as proposed to be filed by the
Company, the Trust and others with the Securities and Exchange Commission on or
about September 3, 1998; and
(e) A Certificate of Good Standing for the Trust, dated September 3,
1998, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise defined are
used as defined in the Trust Agreement.
For purposes of this opinion, we have not reviewed any documents other
than the documents listed in paragraphs (a) through (e) above. In particular, we
have not reviewed any document (other than the documents listed in paragraphs
(a) through (e) 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 the Trust
Agreement constitutes 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 Trust, and that the Trust Agreement and the
Certificate are in full force and effect and have not been amended, (ii) except
to the extent provided in paragraph 1 below, the due creation or 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 creation, organization or formation, (iii) the 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 Trust (collectively, the "Preferred
Security Holders") of a Preferred Securities Certificate, in accordance with the
Trust Agreement, and as described in the Registration Statement, and (vii) that
the Preferred Securities are issued to the Preferred Security Holders in
accordance with the
<PAGE> 3
Newfield Financial Trust II
September 3, 1998
Page 3
Trust Agreement, and as described in the Registration Statement. We have not
participated in the preparation of the Registration Statement and assume no
responsibility for its 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 that 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. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Business Trust Act.
2. The Preferred Securities 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 Trust.
3. The Preferred Security Holders, as beneficial owners of the Trust,
are 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 Trust Agreement.
We consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Validity of 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 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished or quoted to, or relied upon by, any other Person for any purpose.
Very truly yours,
Richards, Layton & Finger, P.A.
<PAGE> 1
EXHIBIT 12.1
NEWFIELD EXPLORATION COMPANY
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
<TABLE>
<CAPTION>
Six Months
Year Ended December 31, Ended June 30,
--------------------------------------- ---------------
1993 1994 1995 1996 1997 1997 1998
------- ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Net pre-tax income 21,781 22,548 25,006 59,286 62,421 30,210 16,216
Fixed charges:
Interest expense,
including debt issue
amortization 54 363 208 420 3,268 857 3,877
Capitalized interest 119 217 674 1,508 3,481 1,327 2,053
Interest portion of
rent expenses 92 155 163 179 197 99 110
------- ------ ------ ------ ------ ------ ------
TOTAL FIXED CHARGES 265 735 1,045 2,107 6,946 2,283 6,040
======= ====== ====== ====== ====== ====== ======
EARNINGS BEFORE
FIXED CHARGES 21,835 22,911 25,214 59,706 65,689 31,067 20,098
RATIO OF EARNINGS TO
FIXED CHARGES 82.29x 31.19x 24.12x 28.34x 9.46x 13.61x 3.33x
</TABLE>
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
SENIOR NOTES DUE XXX
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its xxx% Senior Notes due 20xx, First Union National Bank as the trustee herein
named, hereby consents that reports of examinations of said Trustee by Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
------------------------------------
Title: Vice President
------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell........... 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C).....................................RCFD 2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses................RCFD 3123 1,814,169 //////////////// 4.b.
c. LESS: Allocated transfer risk reserve....................RCFD 3128 0 //////////////// 4.c.
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c).......................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M).......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- --------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES /////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II).......................................... RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13.b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best
describes the most comprehensive level of auditing work performed for the bank Number
by independent external auditors as of any date during 1997..................... RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
SENIOR SUBORDINATED NOTES DUE XXX
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its xxx% Senior Subordinated Notes due 20xx, First Union National Bank as the
trustee herein named, hereby consents that reports of examinations of said
Trustee by Federal, State, Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon requests
therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
SUBORDINATED NOTES DUE XXX
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its xxx% Subordinated Notes due 20xx, First Union National Bank as the trustee
herein named, hereby consents that reports of examinations of said Trustee by
Federal, State, Territorial or District authorities may be furnished by such
authorities to the Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
ASSETS /////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): /////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell........... 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)......................................RCFD 2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 //////////////// 4.b.
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 //////////////// 4.c.
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- -----------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
LIABILITIES /////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs
(from Schedule RC-E, part II) .............................................. /////////////////////
part II).................................................................... RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219///////////////////////// 13.b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
__% CONVERTIBLE SUBORDINATED DEBENTURES DUE XXX
(to be issued to Newfield Financial Trust I)
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its xxx% Convertible Subordinated Debentures due 20xx, First Union National
Bank as the trustee herein named, hereby consents that reports of examinations
of said Trustee by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
__% CONVERTIBLE SUBORDINATED DEBENTURES DUE XXX
(to be issued to Newfield Financial Trust II)
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its xxx% Convertible Subordinated Debentures due 20xx, First Union National
Bank as the trustee herein named, hereby consents that reports of examinations
of said Trustee by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
------------------------------------
Title: Vice President
------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
Guarantee of Preferred Securities of Newfield Financial Trust I
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its guarantee of Preferred Securities of Newfield Financial Trust I, First Union
National Bank as the trustee herein named, hereby consents that reports of
examinations of said Trustee by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.7
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
Guarantee of Preferred Securities of Newfield Financial Trust II
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Exploration Company of
its guarantee of Preferred Securities of Newfield Financial Trust II, First
Union National Bank as the trustee herein named, hereby consents that reports of
examinations of said Trustee by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.8
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
Preferred Securities of Newfield Financial Trust I
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Financial Trust I of
its Preferred Securities, First Union National Bank as the trustee herein named,
hereby consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
--------------------------------------
Title: Vice President
-------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
<PAGE> 1
EXHIBIT 25.9
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------
FORM T-1
---------
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939, AS AMENDED, OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------
FIRST UNION NATIONAL BANK
(Exact name of trustee as specified in its charter)
United States National Bank 56-0900030
(State of incorporation if (I.R.S. employer
not a national bank) identification no.)
First Union National Bank
230 South Tryon Street, 9th Floor
Charlotte, North Carolina 28288-1179
(Address of principal (Zip Code)
executive offices)
SAME AS ABOVE
(Name, address and telephone number, including
area code, of trustee's agent for service)
NEWFIELD EXPLORATION COMPANY
(Exact name of obliger as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
71-1133047
(I.R.S. employer identification no.)
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
(281) 847-6000
(Address, including zip code, of principal executive offices)
-------------------
US $xxx,xxx,xxx
Preferred Securities of Newfield Financial Trust II
(Title of the indenture securities)
<PAGE> 2
1. General information. Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject
- -------------------------------------------------------------------------------
Name Address
- -------------------------------------------------------------------------------
Federal Reserve Bank of Richmond, VA Richmond, VA
Comptroller of the Currency Washington, D.C.
Securities and Exchange Commission
Division of Market Regulation Washington, D.C.
Federal Deposit Insurance Corporation Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
2. Affiliations with obligor and underwriters. If the obligor or any underwriter
for the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
(See Note 1 on Page 4.)
Because the obligor is not in default on any securities issued under indentures
under which the applicant is trustee, Items 3 through 15 are not required
herein.
16. List of Exhibits.
All exhibits identified below are filed as a part of this statement of
eligibility.
1. A copy of the Articles of Association of First Union
National Bank as now in effect, which contain the authority
to commence business and a grant of powers to exercise
corporate trust powers is filed with the T-1 for Financial
Security Assurance Holdings, LTD, as filed
<PAGE> 3
with the Securities and Exchange Commission on September 8,
1997 as Registration No. 333-34181.
2. A copy of the certificate of authority of the trustee to
commence business, if not contained in the Articles of
Association is filed with the T-1 for Financial Security
Assurance Holdings, LTD, as filed with the Securities and
Exchange Commission on September 8, 1997 as Registration No.
333-34181.
3. A copy of the authorization of the trustee to exercise
corporate trust powers, if such authorization is not contained
in the documents specified in exhibits (1) or (2) above is
filed with the T-1 for Financial Security Assurance Holdings,
LTD, as filed with the Securities and Exchange Commission on
September 8, 1997 as Registration No. 333-34181.
4. A copy of the existing By-laws of the trustee, or
instruments corresponding thereto is filed with the T-1 for
Financial Security Assurance Holdings, LTD, as filed with the
Securities and Exchange Commission on September 8, 1997 as
Registration No. 333-34181.
5. Inapplicable.
6. The consent of the trustee required by Section 321(b) of the
Trust Indenture Act of 1939. Included at Page 4 of this Form
T-1 Statement.
7. A copy of the latest report of condition of the trustee
published pursuant to law or to the requirements of its
supervising or examining authority is attached hereto.
8. Inapplicable.
9. Inapplicable.
<PAGE> 4
NOTE
Note 1: Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information. Item 2 may, however, be
considered correct unless amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, First Union National Bank, a national association
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility and qualification to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the City of
Charlotte, and State of North Carolina, on the 3rd day of September, 1998.
FIRST UNION NATIONAL BANK
(trustee)
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Its: Donna J. Flanagan
CONSENT OF TRUSTEE
Under section 321(b) of the Trust Indenture Act of 1939, as amended,
and in connection with the proposed issuance by Newfield Financial Trust II of
its Preferred Securities, First Union National Bank as the trustee herein named,
hereby consents that reports of examinations of said Trustee by Federal, State,
Territorial or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon requests therefor.
FIRST UNION NATIONAL BANK
By: /s/ DONNA J. FLANAGAN
----------------------------------------
Name: Donna J. Flanagan
-------------------------------------
Title: Vice President
------------------------------------
Dated: September 3, 1998
<PAGE> 5
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
C400
Dollar Amount in Thousands RCFD Bil Mil Thou RCFD Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
ASSETS ////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): ////////////////
a. Noninterest-bearing balances and currency and coin (1)........................ 0081 9,898,292 1.a.
b. Interest-bearing balances (2)................................................. 0071 1,785,499 1.b.
2. Securities: ////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A).................... 1754 2,105,131 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D).................. 1773 36,130,513 2.b.
3. Federal funds sold and securities purchased under agreements to resell............ 1350 4,551,009 3.
4. Loans and lease financing receivables ////////////////
a. Loans and leases, net of unearned income
(from Schedule RC-C)..................................... RCFD2122 136,146,280 //////////////// 4.a.
b. LESS: Allowance for loan and lease losses.................RCFD 3123 1,814,169 ////////////////
c. LESS: Allocated transfer risk reserve.....................RCFD 3128 0 ////////////////
d. Loans and leases, net of unearned income, ////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c)........................... 2126 134,332,111 4.d.
5. Trading assets (from Schedule RC-D).............................................. 3545 5,786,208 5.
6. Premises and fixed assets (including capitalized leases)......................... 2145 3,278,523 6.
7. Other real estate owned (from Schedule RC-M)..................................... 2150 125,154 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)......................................................... 2130 345,634 8.
9. Customers' liability to this bank on acceptances outstanding..................... 2155 1,091,060 9.
10. Intangible assets (from Schedule RC-M)........................................... 2143 5,221,760 10.
11. Other assets (from Schedule RC-F)................................................ 2160 8,649,274 11.
12. Total assets (sum of items 1 through 11)......................................... 2170 213,300,168 12.
- ---------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
</TABLE>
<PAGE> 6
Schedule RC--Continued
<TABLE>
<CAPTION>
Dollar Amount in Thousands Bil Mil Thou
- -----------------------------------------------------------------------------------------------------------------------
LIABILITIES
<S> <C> <C> <C> <C>
/////////////////////
13. Deposits: /////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, /////////////////////
part I)..................................................................... RCON 2200 133,606,970 13.a.
(1) Noninterest-bearing (1).......................RCON 6631 26,221,093 ///////////////////// 13.a.(1)
(2) Interest-bearing..............................RCON 6636 107,385,877 ///////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs ////////////////////
(from Schedule RC-E, part II) .............................................. RCFN 2200 9,377,311 13.b.
(1) Noninterest-bearing...........................RCFN 6631 581,219 ///////////////////// 13 b.(1)
(2) Interest-bearing..............................RCFN 6636 8,796,092 ///////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase...... RCFD 2800 22,988,933 14.
15. a. Demand notes issued to the U.S. Treasury.................................... RCON 2840 850,539 15.a.
b. Trading liabilities (from Schedule RC-D).................................... RCFD 3548 4,824,321 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under /////////////////////
capitalized leases):............................................................ /////////////////////
a. With a remaining maturity of one year or less............................... RCFD 2332 11,459,244 16.a.
b. With a remaining maturity of more than one year through three years......... RCFD A547 590,270 16.b.
c. With a remaining maturity of more than three years.......................... RCFD A548 437,360 16.c.
17. Not applicable.................................................................. /////////////////////
18. Bank's liability on acceptances executed and outstanding........................ RCFD 2920 1,106,327 18.
19. Subordinated notes and debentures (2)........................................... RCFD 3200 3,512,216 19.
20. Other liabilities (from Schedule RC-G).......................................... RCFD 2930 7,361,602 20.
21. Total liabilities (sum of items 13 through 20).................................. RCFD 2948 196,115,093 21.
22. Not applicable.................................................................. /////////////////////
EQUITY CAPITAL /////////////////////
23. Perpetual preferred stock and related surplus................................... RCFD 3838 160,540 23.
24. Common stock.................................................................... RCFD 3230 454,543 24.
25. Surplus (exclude all surplus related to preferred stock)........................ RCFD 3839 13,225,076 25.
26. a. Undivided profits and capital reserves...................................... RCFD 3632 3,015,429 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities...... RCFD 8434 330,722 26.b.
27. Cumulative foreign currency translation adjustments............................. RCFD 3284 (1,235) 27.
28. Total equity capital (sum of items 23 through 27)............................... RCFD 3210 17,185,075 28.
29. Total liabilities and equity capital (sum of items 21 and 28)................... RCFD 3300 213,300,168 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1997............................................ RCFD 6724 N/A M.1.
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified blic accounting firm (may be
required by state chartering
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- --------------------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposit.
(2) Includes limited-life preferred stock and related surplus.
