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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED): AUGUST 1, 1999
_________________
NEWFIELD EXPLORATION COMPANY
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 1-12534 71-1133047
(State or other jurisdiction (Commission File Number) (I.R.S. Employer Identification No.)
of incorporation or organization)
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<TABLE>
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363 N. SAM HOUSTON PARKWAY E.,
SUITE 2020
HOUSTON, TEXAS 77060
(Address of principal executive offices) (Zip code)
</TABLE>
Registrant's telephone number, including area code: (281) 847-6000
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ITEM 5. OTHER EVENTS.
Newfield Exploration Company (the "Company"), Newfield
Financial Trust I (the "Trust") and Newfield Financial Trust II
entered into an Underwriting Agreement dated as of August 1, 1999, and the
Company and the Trust entered into a Pricing Agreement dated as of August 9,
1999, covering the issue and sale by the Trust of up to 2,875,000 6 1/2%
Quarterly Income Convertible Preferred Securities, Series A (liquidation amount
$50 per Preferred Security) (the "Preferred Securities"). The Preferred
Securities were registered under the Securities Act of 1933, as amended,
pursuant to the shelf registration statement (Registration Statement No.
333-59391) of the Company, the Trust and Newfield Financial Trust II.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) Exhibits
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1.1 Underwriting Agreement, dated as of August 1, 1999, among the Company, the Trust and Newfield
Financial Trust II.
1.2 Pricing Agreement, dated as of August 9, 1999, among the Company, the Trust and Goldman, Sachs
& Co., Donaldson, Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Dain Rauscher Wessels, a division of Dain Rauscher Incorporated.
4.1 Amended and Restated Trust Agreement of the Trust, dated as of August 13, 1999.
4.2 Form of Preferred Security of the Trust (included in Exhibit 4.1 above).
4.3 Junior Subordinated Convertible Indenture, dated as of August 13, 1999, between the Company and
First Union National Bank, as Trustee.
4.4 Form of 6 1/2% Junior Subordinated Convertible Debenture, Series A due 2029 (included in
Exhibit 4.3 above).
4.5 Guarantee Agreement, dated as of August 13, 1999, relating to the Trust.
8.1 Opinion of Vinson & Elkins L.L.P. as to certain tax matters.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
NEWFIELD EXPLORATION COMPANY
Date: August 13, 1999 By: /s/ TERRY W. RATHERT
-------------------------------
Terry W. Rathert
Vice President
Planning and Administration
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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1.1 Underwriting Agreement, dated as of August 1, 1999, among the Company, the Trust and Newfield
Financial Trust II.
1.2 Pricing Agreement, dated as of August 9, 1999, among the Company, the Trust and Goldman, Sachs
& Co., Donaldson, Lufkin & Jenrette Securities Corporation, Merrill Lynch, Pierce, Fenner &
Smith Incorporated and Dain Rauscher Wessels, a division of Dain Rauscher Incorporated.
4.1 Amended and Restated Trust Agreement of the Trust, dated as of August 13, 1999.
4.2 Form of Preferred Security of the Trust (included in Exhibit 4.1 above).
4.3 Junior Subordinated Convertible Indenture, dated as of August 13, 1999, between the Company and
First Union National Bank, as Trustee.
4.4 Form of 6 1/2% Junior Subordinated Convertible Debenture, Series A due 2029 (included in
Exhibit 4.3 above).
4.5 Guarantee Agreement, dated as of August 13, 1999, relating to the Trust.
8.1 Opinion of Vinson & Elkins L.L.P. as to certain tax matters.
</TABLE>
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EXHIBIT 1.1
Newfield Financial Trust I
Newfield Financial Trust II
Quarterly Income Convertible Preferred Securities
(Convertible QUIPS(SM)*)
guaranteed to the extent set forth in the Guarantee by,
and convertible into Common Stock of,
NEWFIELD EXPLORATION COMPANY
UNDERWRITING AGREEMENT
August 1, 1999
To the Representatives of the several
Underwriters named in the respective
Pricing Agreements hereinafter described
Ladies and Gentlemen:
From time to time Newfield Financial Trust I or Newfield
Financial Trust II, each a statutory business trust formed under the laws of
the State of Delaware (each a "Trust" and collectively the "Trusts"), and
Newfield Exploration Company, a Delaware corporation (the "Company"), as
depositor of each trust and as guarantor, propose to enter into one or more
Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto,
with such additions and deletions as the parties thereto may determine, and,
subject to the terms and conditions stated herein and therein, that the Trust
identified in the applicable Pricing Agreement (such Trust being the
"Designated Trust" with respect to such Pricing Agreement) issue and sell to
the firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its preferred securities (the
"Securities") representing undivided beneficial interests in the assets of the
Designated Trust. The Securities specified in such Pricing Agreement are
referred to as the "Firm Designated Securities" with respect to such Pricing
Agreement. If specified in such Pricing Agreement, the Designated Trust may
grant the Underwriters the right to purchase at their election an additional
number of Securities specified as provided in such Pricing Agreement as
provided in Section 3 hereof (the "Optional Designated Securities"). The Firm
Designated Securities and the Optional Designated Securities, if any, which the
Underwriters elect to purchase pursuant to Section 3 hereof are herein
collectively referred to as the "Designated Securities". The proceeds of the
sale of the Designated Securities to the public and of common securities of the
Designated Trust (the "Common Securities") to the Company concurrently with the
sale of the Designated Securities are to be invested in junior subordinated
deferrable interest debentures of the Company (the "Subordinated Debentures")
identified in the Pricing Agreement with respect to such Designated Securities
(with respect to such Pricing Agreement, the "Designated Subordinated
Debentures"), to be issued pursuant to a junior subordinated indenture
identified in the Pricing
__________________________________
* QUIPS is a service mark of Goldman, Sachs & Co.
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Agreement with respect to such Designated Securities (the "Indenture") between
the Company and First Union National Bank, as trustee (the "Indenture
Trustee"). The Designated Securities will be exchangeable into Designated
Subordinated Debentures, as specified in Schedule II to such Pricing Agreement.
The Designated Securities will be guaranteed by the Company to the extent set
forth in the Pricing Agreement with respect to such Designated Securities (the
"Designated Guarantee") (all such Designated Guarantees together, the
"Guarantees"). The Securities will be convertible into shares of the common
stock, par value $.01 per share, of the Company (the "Stock"), as specified in
Schedule II to such Pricing Agreement.
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the amended and restated trust agreement identified in such
Pricing Agreement (with respect to such Pricing Agreement, the "Trust
Agreement").
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Designated Securities, for whom the
firms designated as representatives of the Underwriters of such Designated
Securities in the Pricing Agreement relating thereto will act as
representatives (the "Representatives"). The term "Representatives" also
refers to a single firm acting as sole representative of the Underwriters and
to an Underwriter or Underwriters who act without any firm being designated as
its or their representatives. This Underwriting Agreement shall not be
construed as an obligation of either Trust to sell any of the Securities or as
an obligation of any of the Underwriters to purchase any of the Securities.
The obligation of the Trusts to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall
be evidenced by the Pricing Agreement with respect to the Securities specified
therein. Each Pricing Agreement shall specify the aggregate number of the Firm
Designated Securities, the maximum number of Optional Designated Securities, if
any, the initial public offering price of such Firm and Optional Designated
Securities or the manner of determining such price, the terms of the Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters, the number of such
Designated Securities to be purchased by each Underwriter and the commission,
if any, payable to the Underwriters with respect thereto and shall set forth
the date, time and manner of delivery of such Firm Designated Securities and
Optional Designated Securities, if any, and payment therefor. The Pricing
Agreement shall also specify (to the extent not set forth in the registration
statement and prospectus with respect thereto) the terms of such Designated
Securities. A Pricing Agreement shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several
and not joint.
2. The Designated Trust and the Company, jointly and severally,
represent and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
333-59391) (as amended prior to being declared effective, the "Initial
Registration Statement") in respect of the Securities, the
Subordinated Debentures, the Guarantees and the Stock (including the
Designated Securities, the Designated Subordinated Debentures and the
Designated Guarantee) has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration Statement and
any post-effective amendment thereto, each in the form heretofore
delivered or to be delivered to the Representatives
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(excluding exhibits to the Initial Registration Statement, but
including all documents incorporated by reference in the prospectus
contained therein), have been declared effective by the Commission in
such form; other than a registration statement, if any, increasing the
size of the offering (a "Rule 462(b) Registration Statement"), filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended
(the "Act"), which became effective upon filing, no other document
with respect to the Initial Registration Statement or document
incorporated by reference therein has heretofore been filed, or
transmitted for filing, with the Commission (other than prospectuses
filed pursuant to Rule 424(b) of the rules and regulations of the
Commission under the Act each in the form heretofore delivered to the
Representatives); and no stop order suspending the effectiveness of
the Initial Registration Statement, any post-effective amendment
thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or
threatened by the Commission; any preliminary prospectus included in
the Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) under the Act and relating to the Securities,
is hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statement, any post-effective amendment
thereto and the Rule 462(b) Registration Statement, if any, including
all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the Initial Registration Statement at the
time such part of the Initial Registration Statement became effective
but excluding Form T-1, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; the prospectus relating to the Securities,
the Subordinated Debentures, the Guarantees and the Stock, in the form
in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such
Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment or supplement to any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of either Trust, if
any, and the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration
Statement that is incorporated by reference in the Registration
Statement; and any reference to the Prospectus as amended or
supplemented shall be deemed to refer to the Prospectus as amended or
supplemented in relation to the applicable Designated Securities in
the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including
any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder, and none of
such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further
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amendment or supplement thereto, when such documents become effective
or are filed with the Commission, as the case may be, will conform in
all material respects to the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the Commission
thereunder and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in
the Prospectus as amended or supplemented relating to such Designated
Securities;
(c) The Registration Statement and the Prospectus
conform, and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects to
the requirements of the Act and the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act"), and the rules and regulations of
the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
post-effective amendment thereto and as of the applicable filing date
as to the Prospectus and any amendment or supplement thereto, contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Prospectus as amended or
supplemented relating to such Designated Securities;
(d) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any material
loss or interference with the business of the Company and its
subsidiaries, taken as a whole, from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any material change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, taken as
a whole, otherwise than as set forth or contemplated in the
Prospectus;
(e) The Company and its subsidiaries have (i) generally
satisfactory title to all their interests in their oil and gas
properties, title investigations having been carried out by the
Company in accordance with the general practice in the oil and gas
industry, (ii) good and indefeasible title to all other real property
owned by them that is material to the Company and its subsidiaries,
taken as a whole, and (iii) good and valid title to all personal
property owned by them that is material to the Company and its
subsidiaries, taken as a whole, in each case free and clear of all
liens, encumbrances, claims, security interests, subleases and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company
and its subsidiaries; and any real property (other than oil and gas
properties) and buildings material to the Company and its
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subsidiaries, taken as a whole, held under lease by the Company and
its subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by the Company and its subsidiaries;
(f) The Designated Trust has been duly created and is
validly existing as a business trust in good standing under the laws
of the State of Delaware, with power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus; the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own,
lease and operate its properties and conduct its business as described
in the Prospectus and to enter into and perform its obligations under
this Agreement, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws
of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the
failure to be so qualified in any such jurisdiction; and each
subsidiary of the Company has been duly incorporated or otherwise
organized and is validly existing as a corporation or other entity in
good standing under the laws of its jurisdiction of incorporation or
organization;
(g) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock
of the Company have been duly and validly authorized and issued and
are fully paid and non-assessable; all the outstanding beneficial
interests in the Designated Trust have been duly and validly
authorized and issued, are fully paid and non-assessable and conform
to the descriptions thereof contained in the Prospectus; and all of
the issued shares of capital stock or other ownership interests of
each subsidiary of the Company have been duly and validly authorized
and issued, are fully paid and non-assessable and (except (i) for
Newfield China, LDC, which the Company owns 100% of the outstanding
voting securities and none of the outstanding preferred stock, (ii)
for African Petroleum\Huffco International Ltd, which the Company owns
indirectly 34% of the outstanding voting securities, (iii) for Kipper
GS Pty Ltd, which the Company owns indirectly 50% of the outstanding
voting securities and no monetary interest, (iv) for directors'
qualifying shares and (v) as otherwise set forth in the Prospectus)
are owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims;
(h) The Designated Securities have been duly and validly
authorized, and, when the Firm Designated Securities are issued and
delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities and, in the case of any Optional
Designated Securities, pursuant to Over-allotment Options (as defined
in Section 3 hereof) with respect to such Designated Securities, such
Designated Securities will be duly and validly issued and fully paid
and non-assessable beneficial interests in the Designated Trust
entitled to the benefits provided by the applicable Trust Agreement,
which will be substantially in the form filed as an exhibit to the
Registration Statement; the Designated Securities conform to the
description thereof contained in the Registration Statement; and the
Designated Securities will conform to the description thereof
contained in the Prospectus as amended or supplemented with respect to
such Designated Securities;
(i) The holders of the Designated Securities (the
"Securityholders") will be entitled to the same limitation of personal
liability extended to stockholders of private
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corporations for profit organized under the General Corporation Law of
the State of Delaware;
(j) The Common Securities of the Designated Trust have
been duly authorized on behalf of the Designated Trust by the Company,
as depositor of the Designated Trust, and upon delivery by the
Designated Trust to the Company against payment therefor as set forth
in the Trust Agreement, will be duly and validly issued and
non-assessable beneficial interests in the Designated Trust and will
conform to the description thereof contained in the Prospectus; the
issuance of the Common Securities of the Designated Trust is not
subject to preemptive or other similar rights; the Common Securities
conform to the description thereof contained in the Registration
Statement; and at each Time of Delivery (as defined in Section 4
hereof), all of the issued and outstanding Common Securities of the
Designated Trust will be directly owned by the Company free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity;
(k) The Designated Guarantee, any Agreement as to
Expenses and Liabilities between the Company and the Designated Trust
set forth in the Pricing Agreement (the "Designated Expense
Agreement") (all such Designated Expense Agreements together, the
"Expense Agreements"), the Trust Agreement for the Designated Trust,
the Designated Subordinated Debentures and the Indenture (the
Designated Guarantee, any Designated Expense Agreement, such Trust
Agreement, the Designated Subordinated Debentures and the Indenture
being collectively referred to as the "Company Agreements") have each
been duly authorized and when validly executed and delivered by the
Company and, in the case of the Designated Guarantee, by the Guarantee
Trustee (as defined in the Designated Guarantee), in the case of the
Designated Expense Agreement, by the Designated Trust, in the case of
the Trust Agreement, by the Trustees (as defined in the Trust
Agreement) and, in the case of the Indenture, by the Indenture
Trustee, and, in the case of the Designated Subordinated Debentures,
when validly issued by the Company and duly authenticated and
delivered by the Indenture Trustee, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their respective terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; the Trust Agreement, the Indenture and the Designated
Guarantee have each been duly qualified under the Trust Indenture Act;
the Designated Subordinated Debentures are entitled to the benefits of
the Indenture; and the Company Agreements, which will be in
substantially the form filed as exhibits to the Registration
Statement, will conform to the descriptions thereof in the Prospectus
as amended or supplemented with respect to the Designated Securities
to which they relate;
(l) The issue and sale of the Designated Securities by
the Designated Trust, the compliance by the Designated Trust with all
of the provisions of this Agreement, any Pricing Agreement and each
Over-allotment Option, if any, the Designated Expense Agreement and
the Trust Agreement, the purchase of the Designated Subordinated
Debentures by the Designated Trust, the execution, delivery and
performance by the Designated Trust of the Trust Agreement and the
consummation of the transactions contemplated herein and therein will
not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Trust is a party or by which such Trust is
bound or to which any of the property or assets of such Trust is
subject, nor will such action result in any violation of the
provisions of the Trust Agreement
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or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such Trust or any
of its properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Designated Securities and the Common Securities by such Trust, the
purchase of the Subordinated Debentures by such Trust or the
consummation by such Trust of the transactions contemplated by this
Agreement, the Pricing Agreement or any Over-allotment Option, the
Designated Expense Agreement or the Trust Agreement, except such as
have been, or will have been, prior to each Time of Delivery, obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
(m) The issuance by the Company of the Designated
Guarantee and the Designated Subordinated Debentures, the compliance
by the Company with all of the provisions of this Agreement, any
Pricing Agreement and each Over-allotment Option, if any, the
Designated Guarantee, the Designated Expense Agreement, the Designated
Subordinated Debentures, the Trust Agreement and the Indenture, the
execution, delivery and performance by the Company of the Company
Agreements and this Agreement, and the consummation of the
transactions contemplated herein and therein will not (i) violate or
conflict with any provision of the Certificate of Incorporation or
By-Laws of the Company or any of its subsidiaries; (ii) conflict with
or result in a breach or violation of any of the terms or provisions
of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject; or (iii)
result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties, except for any
such conflicts, breaches or violations that would not, individually or
in the aggregate, adversely affect the issue or sale of the Designated
Securities, the issue of the Designated Guarantee, the issue or sale
of the Designated Subordinated Debentures or the execution, delivery
or performance of this Agreement or the Company Agreements by the
Company or the Designated Trust or have a material adverse effect on
the financial position, stockholders' equity, results of operations,
business or prospects of the Company and its subsidiaries, taken as a
whole (a "Material Adverse Effect"), and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Designated Securities, the issue of the Designated
Guarantee, the issue or sale of the Designated Subordinated
Debentures, the performance by the Company of this Agreement or the
consummation by the Company of the transactions contemplated by this
Agreement or any Pricing Agreement or any Over-allotment Option or the
Company Agreements, except such as have been, or will have been prior
to each Time of Delivery (as defined in Section 4 hereof), obtained
under the Act and the Trust Indenture Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with
the purchase and distribution of the Designated Securities by the
Underwriters;
(n) None of the Designated Trust, the Company nor any of
its subsidiaries, as applicable, is in violation of the Trust
Agreement for the Designated Trust, the Certificate of Trust for the
Designated Trust, the Restated Certificate of Incorporation or By-Laws
of
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the Company, or the charter or by-laws of any of its subsidiaries or
in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any
of its properties may be bound, other than any such violation or
default that would not have a Material Adverse Effect;
(o) The statements set forth in the Prospectus under the
caption "Description of the Preferred Securities", "Description of the
Debentures", "Description of the Guarantee", "Relationship among the
Preferred Securities, the Debentures and the Guarantee" and
"Description of Capital Stock", and in the Prospectus as amended or
supplemented, insofar as they purport to constitute a summary of the
terms of the Designated Securities, the Stock, the Designated
Subordinated Debentures, the Designated Guarantee, the Securities, the
Indentures, the Subordinated Debentures, and the Guarantees,
respectively, and under the caption "Underwriting" and "Plan of
Distribution", insofar as they purport to describe the provisions of
the laws and documents referred to therein, are accurate in all
material respects;
(p) The shares of Stock issuable upon conversion of the
Designated Subordinated Debentures have been duly authorized and
reserved for issuance and, when issued and delivered upon conversion
of the Designated Subordinated Debentures will be duly and validly
issued, fully paid and non-assessable and will conform to the
descriptions thereof in the Prospectus;
(q) The consolidated financial statements, including the
notes thereto, included in the Prospectus present fairly, in all
material respects, the consolidated financial position of the Company
and its subsidiaries as at the dates indicated and the results of
their operations and cash flows for the periods specified; except as
otherwise stated in the Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis, except in the case of
unaudited financial statements for the absence of notes thereto and
subject to normal year-end audit adjustments; and the selected
historical financial data and summary financial data for the Company
included in the Prospectus as amended and supplemented have been
compiled on a basis consistent with that of the audited or unaudited,
as applicable, consolidated financial statements of the Company;
(r) The Company owns or possesses adequate rights to use
the patents, patent rights, licenses, inventions, copyrights, know-how
(including seismic data, trade secrets and other unpatented or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively,
"patent and proprietary rights") currently employed by it in and
material to the business now operated by it (other than the use of the
names "Huffco" and "Gulf" and derivatives thereof, which are not
material to the Company's business), and the Company has not received
any notice of infringement of or conflict with asserted rights of
others with respect to any patent or proprietary rights, or of any
facts which would render any patent or proprietary rights invalid or
inadequate to protect the interest of the Company therein, and which
infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the
aggregate, would result in a Material Adverse Effect;
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<PAGE> 9
(s) The Company possesses such licenses, permits,
consents, orders, certificates or authorizations issued by the
appropriate federal, state, foreign or local regulatory agencies or
bodies necessary to conduct the business now operated by it, except
for licenses, permits, consents, orders, certificates or
authorizations, the absence of which, individually or in the
aggregate, would not have a Material Adverse Effect, and the Company
has not received any notice of proceedings relating to the revocation
or modification of any such licenses, permits, consents, orders,
certificates or authorizations which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would have
a Material Adverse Effect;
(t) Other than as set forth in the Prospectus, there are
no legal or governmental proceedings pending to which the Designated
Trust, the Company or any of its subsidiaries is a party or of which
any property of the Designated Trust, the Company or any of its
subsidiaries is the subject which, if determined adversely to the
Designated Trust, the Company or any of its subsidiaries, would have a
Material Adverse Effect; and, to the best of knowledge of the Company
or the Designated Trust, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(u) The Company carries, or is covered by, insurance in
such amounts and covering such risks as is customary for companies
engaged in similar businesses in similar industries;
(v) Except as described in the Prospectus, there has been
no storage, disposal, generation, manufacture, spill, discharge,
refinement, transportation, handling or treatment of toxic wastes,
hazardous wastes or hazardous substances by the Company (or to the
knowledge of the Company, any of its predecessors in interest) at,
upon or from any of the property now or previously owned or leased or
under contract for purchase by the Company in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree
or permit or which would require remedial action under any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action which would not result in,
or which would not be reasonably likely to result in, singularly or in
the aggregate with all such violations and remedial actions, any
Material Adverse Effect; and the terms "hazardous wastes," "toxic
wastes" and "hazardous substances" shall have the meanings specified
in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection;
(w) Neither the Designated Trust nor the Company is or,
after giving effect to the offering and sale of the Securities and the
Subordinated Debentures, will be, an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(x) PricewaterhouseCoopers LLP, who have audited certain
financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the rules
and regulations of the Commission thereunder; and
(y) Ryder Scott Company Petroleum Engineers, whose
reserve report is incorporated by reference in the Registration
Statement, are independent petroleum engineers with respect to the
Company.
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<PAGE> 10
(z) The Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a Material Adverse
Effect or result in any material loss or interference with the
Company's business or operations. The "Year 2000 Problem" as used
herein means any significant risk that computer hardware or software
used in the receipt, transmission, processing, manipulation, storage,
retrieval, retransmission or other utilization of data or in the
operation of mechanical or electrical systems of any kind will not, in
the case of dates or time periods occurring after December 31, 1999,
function at least as effectively as in the case of dates or time
periods occurring prior to January 1, 2000.
3. Upon the execution of the Pricing Agreement applicable to any
Designated Securities and authorization by the Representatives of the release
of the Firm Designated Securities, the several Underwriters propose to offer
the Firm Designated Securities for sale upon the terms and conditions set forth
in the Prospectus as amended or supplemented.
The Designated Trust may specify in the Pricing Agreement applicable
to any Designated Securities that the Designated Trust thereby grants to the
Underwriters the right (an "Over-allotment Option") to purchase at their
election up to the number of Optional Designated Securities set forth in such
Pricing Agreement, on the terms set forth in the paragraph above, for the sole
purpose of covering sales of Designated Securities in excess of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Designated Trust and the Company, given within a period specified in the
Pricing Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives but in no
event earlier than the First Time of Delivery (as defined in Section 4 hereof)
or, unless the Representatives, the Designated Trust and the Company otherwise
agree in writing, earlier than or later than the respective number of business
days after the date of such notice set forth in such Pricing Agreement.
The number of Optional Designated Securities to be added to the number
of Firm Designated Securities to be purchased by each Underwriter as set forth
in Schedule I to the Pricing Agreement applicable to such Designated Securities
shall be, in each case, the number of Optional Designated Securities which the
Designated Trust and the Company have been advised by the Representatives have
been attributed to such Underwriter; provided that, if the Designated Trust and
the Company have not been so advised, the number of Optional Designated
Securities to be so added shall be, in each case, that proportion of Optional
Designated Securities which the number of Firm Designated Securities to be
purchased by such Underwriter under such Pricing Agreement bears to the
aggregate number of Firm Designated Securities (rounded as the Representatives
may determine to the nearest 100 Securities). The total number of Designated
Securities to be purchased by all the Underwriters pursuant to such Pricing
Agreement shall be the aggregate number of Firm Designated Securities set forth
in Schedule I to such Pricing Agreement plus the aggregate number of Optional
Designated Securities which the Underwriters elect to purchase. As
compensation to the Underwriters of the Designated Securities for their
commitments under the Pricing Agreement, and in view of the fact that the
proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Designated Subordinated Debentures of the
Company, the Company agrees to pay at each Time of Delivery to the
Representatives, for the accounts of the several Underwriters, the amount set
forth in the Pricing Agreement per Designated Security to be delivered at each
Time of Delivery.
4. Certificates for the Firm Designated Securities and the
Optional Designated Securities to be purchased by each Underwriter pursuant to
the Pricing Agreement relating thereto,
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<PAGE> 11
in the form specified in such Pricing Agreement, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Designated Trust and the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Designated Trust to
the Representatives at least forty-eight hours in advance as specified in such
Pricing Agreement, (i) with respect to the Firm Designated Securities, all in
the manner and at the place and time and date specified in such Pricing
Agreement or at such other place and time and date as the Representatives, the
Designated Trust and the Company may agree upon in writing, such time and date
being herein called the "First Time of Delivery" and (ii) with respect to the
Optional Designated Securities, if any, in the manner and at the time and date
specified by the Representatives in the written notice given by the
Representatives of the Underwriters' election to purchase such Optional
Designated Securities, or at such other time and date as the Representatives,
the Designated Trust and the Company may agree upon in writing, such time and
date, if not the First Time of Delivery, being herein called the "Second Time
of Delivery". Each such time and date for delivery is herein called a "Time of
Delivery".
5. The Designated Trust and the Company, jointly and severally,
agree with each of the Underwriters of any Designated Securities:
(a) To prepare the Prospectus as amended and supplemented
in relation to the applicable Designated Securities in a form approved
by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of the
Pricing Agreement relating to the applicable Designated Securities or,
if applicable, such earlier time as may be required by Rule 424(b); to
make no further amendment or any supplement to the Registration
Statement or Prospectus as amended or supplemented after the date of
the Pricing Agreement relating to such Designated Securities and prior
to any Time of Delivery for such Designated Securities which shall be
disapproved by the Representatives for such Designated Securities
promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after any
Time of Delivery for such Designated Securities and furnish the
Representatives with copies thereof; to file promptly all reports and
any definitive proxy or information statements required to be filed by
the Designated Trust or the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as
the delivery of a prospectus is required in connection with the
offering or sale of such Designated Securities, and during such same
period to advise the Representatives, promptly after it receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed with the
Commission, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any prospectus relating
to the Designated Securities, of the suspension of the qualification
of such Designated Securities, the Designated Subordinated Debentures,
the Designated Guarantee or the Stock issuable upon conversion for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any such stop order or of any such order
preventing or suspending the use of any prospectus relating to the
Designated Securities or suspending
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<PAGE> 12
any such qualification, promptly to use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated
Securities, the Designated Subordinated Debentures, the Designated
Guarantee or the Stock issuable upon conversion, for offering and sale
under the securities laws of such jurisdictions as the Representatives
may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as
long as may be necessary to complete the distribution of such
Designated Securities, provided that in connection therewith neither
the Designated Trust nor the Company shall be required to qualify as a
foreign corporation or to file a general consent to service of process
in any jurisdiction;
(c) By 12:00 noon, New York City Time, on the New York
business day next succeeding the date of the Pricing Agreement for
such Designated Securities and from time to time thereafter, to
furnish the Underwriters with copies of the Prospectus as amended or
supplemented in New York City in such quantities as the
Representatives may reasonably request, and, if the delivery of a
prospectus is required at any time in connection with the offering or
sale of the Designated Securities, the Designated Subordinated
Debentures, the Designated Guarantee or the Stock issuable upon
conversion and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such same period to amend or supplement
the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with
the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and upon their request to file such document and to
prepare and furnish without charge to each Underwriter and to any
dealer in securities as many copies as the Representatives may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or
omission or effect such compliance;
(d) To make generally available to its security holders
as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement (as
defined in Rule 158(c) under the Act), an earnings statement of the
Company and its subsidiaries (which need not be audited) complying
with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(e) During the period beginning from the date of the
Pricing Agreement for such Designated Securities and continuing to and
including the later of (i) the termination of trading restrictions for
such Designated Securities, as notified to the Designated Trust and
the Company by the Representatives, (ii) the last Time of Delivery for
such Designated Securities and (iii) any period specified in the
Pricing Agreement, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, (x) any Securities, capital
securities, trust securities or any other securities of any trust or
of the Company that are substantially similar to the Designated
Securities, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock, or (y) any shares of the Stock or any substantially
similar securities (other than pursuant
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<PAGE> 13
to employee benefit plans existing on, or upon the conversion of
convertible or exchangeable securities outstanding as of, the date of
the Pricing Agreement for such Designated Securities) without the
prior written consent of the Representatives;
(f) If the Designated Trust and the Company elect to rely
upon Rule 462(b), the Designated Trust and the Company shall file a
Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement, and the Designated Trust and the Company shall at the
time of filing either pay to the Commission the filing fee for the
Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act;
(g) In the case of the Company, to issue the Guarantee
and to purchase the Common Securities concurrently with the issue and
sale of the Designated Securities, as contemplated herein or in the
Pricing Agreement;
(h) To use its best efforts to list, subject to notice of
issuance, the Stock issuable upon conversion of the Designated
Subordinated Debentures on the New York Stock Exchange (the
"Exchange"), and the Designated Securities on any exchange or market
listed in the Pricing Agreement; and
(i) To reserve and keep available at all times, free of
preemptive rights, shares of Stock for the purpose of enabling the
Company to satisfy its obligation to issue shares of its Stock upon
conversion of the Designated Subordinated Debentures.
6. The Company covenants and agrees with the several Underwriters
that the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel, accountants and reserve
engineers in connection with the registration of the Designated Securities, the
Securities, the Designated Subordinated Debentures, the Designated Guarantee
and the Stock issuable upon conversion under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Company
Agreement, the Indenture, the Securities, the Subordinated Debentures, any Blue
Sky Memorandum, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Designated Securities; (iii) all expenses in connection with the
qualification of the Designated Securities, the Securities, the Designated
Subordinated Debentures, and the Stock issuable upon conversion for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
survey(s); (iv) any fees charged by securities rating services for rating the
Designated Securities, the Designated Subordinated Debentures and the
Designated Guarantee; (v) any filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required
reviews by the National Association of Securities Dealers, Inc. of the terms of
the sale of the Designated Securities and the issuance of the Designated
Guarantee and the Designated Subordinated Debentures; (vi) any fees and
expenses in connection with listing the Designated Securities, the Designated
Subordinated Debentures and the Stock; (vii) the cost of printing or engraving
the Designated Securities and the Subordinated Debentures; (vii) the fees and
expenses of any Trustee, Indenture Trustee and Guarantee Trustee,
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<PAGE> 14
and any agent of any trustee and the fees and disbursements of counsel for any
trustee in connection with any Trust Agreement, Indenture, Guarantee and the
Securities; (viii) the cost of qualifying the Securities with The Depository
Trust Company; and (ix) all other costs and expenses incident to the
performance of its obligations hereunder and under the Pricing Agreement
(including with respect to any Optional Designated Securities) which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale of any of the Designated Securities
by them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Designated
Trust and the Company in or incorporated by reference in the Pricing Agreement
relating to such Designated Securities are, at and as of each Time of Delivery
for such Designated Securities, true and correct, the condition that the
Designated Trust and the Company shall have performed all of their respective
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus as amended or supplemented in relation
to such Designated Securities shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the rules and regulations under the Act
and in accordance with Section 5(a) hereof; if the Designated Trust
and the Company have elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 P.M.,
Washington, D.C. time, on the date of this Agreement; no stop order
suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all
requests for additional information on the part of the Commission
shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to
the Representatives such written opinion or opinions, dated each Time
of Delivery for such Designated Securities, with respect to the
incorporation of the Company, the validity of the Designated
Subordinated Debentures, the Indenture and the Designated Guarantee,
the Registration Statement, the Prospectus as amended and
supplemented, this Agreement and the Pricing Agreement, as well as
such other related matters as the Representatives may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon
such matters;
(c) Counsel for the Company satisfactory to the
Representatives shall have furnished to the Representatives their
written opinion, dated each Time of Delivery for such Designated
Securities, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus as amended or supplemented;
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<PAGE> 15
(ii) The Company has authorized capital stock as
set forth in the Prospectus as amended or supplemented, and
all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid
and non-assessable; and the shares of Stock initially issuable
upon conversion of the Designated Subordinated Debentures have
been duly and validly authorized and reserved for issuance
and, when issued and delivered in accordance with the
provisions of the Designated Securities, the Designated
Subordinated Debentures and the Indenture, will be duly and
validly issued and fully paid and non-assessable, and will
conform to the description the Stock contained in the
Prospectus;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company, or
any of its subsidiaries is a party or of which any property of
the Company or any of its subsidiaries is the subject which,
if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the financial position,
stockholders' equity, results of operations or business of the
Company and its subsidiaries, taken as a whole; and to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or threatened by
others;
(iv) This Agreement and the Pricing Agreement with
respect to the Designated Securities have been duly
authorized, executed and delivered by the Company;
(v) The issue and sale by the Company of the
Designated Subordinated Debentures being delivered at such
Time of Delivery, the issue by the Company of the Designated
Guarantee and the compliance by the Company with all of the
provisions of this Agreement and the Pricing Agreement and the
Company Agreements, the execution, delivery and performance by
the Company of the Company Agreements and the consummation of
the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any
violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of its
subsidiaries or any of their properties, except for any such
conflicts, breaches or violations that would not, individually
or in the aggregate, adversely affect the issue or sale of the
Designated Securities by the Company, the issue or sale of the
Designated Subordinated Debentures, the issue of the
Designated Guarantee, or the execution, delivery or
performance of this Agreement, the Pricing Agreement or any
Company Agreement by the Company or have a material adverse
effect on the financial position, stockholders' equity,
results of operations or business of the Company and its
subsidiaries, taken as a whole (except that such counsel need
express no opinion with respect to federal or state securities
or Blue Sky laws with respect to this subparagraph);
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<PAGE> 16
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale
of the Designated Securities or Designated Subordinated
Debentures being delivered at such Time of Delivery or the
consummation by the Designated Trust or the Company of the
transactions contemplated by this Agreement or such Pricing
Agreement or the Company Agreements, except such as have been
obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws;
(vii) The statements set forth in the Prospectus as
amended and supplemented under the captions "Description of
the Preferred Securities", "Description of the Debentures",
"Description of the Guarantee", "Relationship among the
Preferred Securities, the Debentures and the Guarantee" and
"Description of Capital Stock", insofar as they purport to
constitute a summary of the terms of the Designated
Securities, the Designated Subordinated Debentures, the
Indenture, the Designated Guarantee, the Company Agreements or
the Stock and under the caption "Underwriting", insofar as
they purport to describe the provisions of the laws and
documents referred to therein, are accurate in all material
respects;
(viii) The Designated Subordinated Debentures are in
the form prescribed in or pursuant to the Indenture, have been
duly and validly authorized by the Company by all necessary
corporate action and, when executed and authenticated as
specified in or pursuant to the Indenture and issued and
delivered, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the Indenture; and the Designated Subordinated Debentures
and the Indenture conform to the descriptions thereof in the
Prospectus and in the Prospectus as amended and supplemented;
the Indenture has been duly authorized, executed and delivered
by the parties thereto and constitutes a valid and legally
binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;
(ix) The Company Agreements have each been duly
authorized, executed and delivered by the Company and
constitute valid and legally binding instruments, enforceable
in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Indenture, the Designated Guarantee and the Trust Agreement
have been duly qualified under the Trust Indenture Act;
(x) Neither the Company nor the Designated Trust
is an "investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act;
(xi) The documents incorporated by reference in
the Prospectus as amended or supplemented (other than the
financial statements and related schedules or other
information of a financial or reserve engineering nature
therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all
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<PAGE> 17
material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they became effective
or were so filed, as the case may be, contained, in the case
of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or,
in the case of other documents which were filed under the Act
or the Exchange Act with the Commission, an untrue statement
of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such documents were so filed, not misleading; and
(xii) The Registration Statement and the Prospectus
as amended or supplemented, and any further amendments and
supplements thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules or other information of a financial or reserve
engineering nature therein, as to which such counsel need
express no opinion), comply as to form in all material
respects with the requirements of the Act and the rules and
regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinions in
subsections (ii), (vii) and (viii) of this Section 7(c), they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and related schedules or other
information of a financial or reserve engineering nature
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading or
that, as of its date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other
than the financial statements and related schedules or other
information of a financial or reserve engineering nature
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus
as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related
schedules or other information of a financial or reserve
engineering nature therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of
any amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus as amended or supplemented or required to be
described in the Registration Statement or the Prospectus as
amended or supplemented which are not filed or incorporated by
reference or described as required;
17
<PAGE> 18
(d) Special Delaware counsel to the Designated Trust and
the Company satisfactory to the Representatives shall have furnished
to the Representatives, the Company and the Designated Trust their
written opinion, dated each Time of Delivery for such Designated
Securities, respectively, in form and substance satisfactory to the
Representatives, to the effect that:
(i) The Designated Trust has been duly created
and is validly existing in good standing as a business trust
under the Delaware Business Trust Act, and all filings
required under the laws of the State of Delaware with respect
to the creation and valid existence of the Designated Trust as
a business trust have been made;
(ii) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the power and
authority to own property and conduct its business, all as
described in the Prospectus;
(iii) The Trust Agreement constitutes a valid and
binding obligation of the Company and the Trustees,
enforceable against the Company and the Trustees in accordance
with its terms, subject, as to enforcement, to bankruptcy,
insolvency, receivership, liquidation, fraudulent conveyance,
fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting
creditors' rights to general equity principles, including
applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at
law), and to the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iv) Under the Delaware Business Trust Act and the
Trust Agreement, the Designated Trust has the requisite trust
power and authority to (a) execute, deliver and perform its
obligations under this Agreement and the Pricing Agreement and
(b) issue and perform its obligations under the Designated
Securities and the Common Securities of the Designated Trust;
(v) Under the Delaware Business Trust Act and the
Trust Agreement, the execution and delivery by the Designated
Trust of this Agreement and the Pricing Agreement, and the
performance by the Designated Trust of its obligations
hereunder and thereunder, have been duly authorized by the
requisite trust action on the part of the Designated Trust;
(vi) The Designated Securities have been duly
authorized by the Trust Agreement and are duly and validly
issued and, subject to the qualifications set forth herein,
fully paid and non- assessable beneficial interests in the
Designated Trust and are entitled to the benefits provided by
the Trust Agreement; the Securityholders, as beneficial owners
of the Designated Trust, will be entitled to the same
limitation of personal liability extended to stockholders of
private corporations for profit organized under the General
Corporation Law of the State of Delaware; provided that such
counsel may note that the Securityholders may be obligated,
pursuant to the Trust Agreement, to (a) provide indemnity
and/or security in connection with and pay taxes or
governmental charges arising from transfers or exchanges of
Securities Certificates and the issuance of replacement
Securities Certificates and (b) provide security and indemnity
in connection with requests of
18
<PAGE> 19
or directions to the Property Trustee (as defined in the Trust
Agreement) to exercise its rights and remedies under the Trust
Agreement;
(vii) The Common Securities of the Designated Trust
have been duly authorized by the Trust Agreement and are
validly issued and represent beneficial interests in the
Designated Trust;
(viii) Under the Delaware Business Trust Act and the
Trust Agreement, the issuance of the Designated Securities and
the Common Securities of the Designated Trust is not subject
to preemptive rights;
(ix) The issuance and sale by the Designated Trust
of Designated Securities and the Common Securities of the
Designated Trust, the execution, delivery and performance by
the Designated Trust of this Agreement and the Pricing
Agreement, the consummation by the Designated Trust of the
transactions contemplated thereby and compliance by the
Designated Trust with its obligations thereunder will not
violate (a) any of the provisions of the Certificate of Trust
of the Designated Trust or the Trust Agreement, or (b) any
applicable Delaware law or administrative regulation;
(x) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, no authorization,
approval, consent or order of any Delaware court or
governmental authority or agency is required to be obtained by
the Designated Trust solely in connection with the issuance
and sale of the Designated Securities and the Common
Securities of the Designated Trust (in rendering the opinion
expressed in this paragraph (x), such counsel need express no
opinion concerning the securities laws of the State of
Delaware);
(xi) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, the Securityholders (other
than those holders of the Securities who reside or are
domiciled in the State of Delaware) will have no liability for
income taxes imposed by the State of Delaware solely as a
result of their participation in the Designated Trust, and the
Designated Trust will not be liable for any income tax imposed
by the State of Delaware; and
(xii) Assuming that the Designated Trust derives no
income from or connected with sources within the State of
Delaware and has no assets, activities (other than maintaining
the Delaware Designated Trustee and the filing of documents
with the Secretary of State of the State of Delaware) or
employees in the State of Delaware, there are no taxes, fees
or other governmental charges payable by the Designated Trust
(or the Trustees of the Designated Trust on behalf of the
Designated Trust) under the laws of the State of Delaware or
any political subdivision thereof in connection with the
execution, delivery and performance by either Designated
Trustee of the Designated Trust of the Trust Agreement;
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<PAGE> 20
(e) Tax counsel for the Designated Trust and the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated each Time of Delivery for
such Designated Securities, in form and substance satisfactory to the
Representatives, to the effect that such firm confirms its opinion set
forth in the Prospectus as amended and supplemented under the caption
"Certain Federal Income Tax Consequences";
(f) On the date of the Pricing Agreement for such
Designated Securities at a time prior to the execution of the Pricing
Agreement with respect to the Designated Securities and at each Time
of Delivery for such Designated Securities, the independent
accountants of the Company who have audited the financial statements
of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter, dated the effective date of the Registration
Statement or the date of the most recent report filed with the
Commission containing financial statements and incorporated by
reference in the Registration Statement, if the date of such report is
later than such effective date, and a letter dated such Time of
Delivery, respectively, to the effect set forth in Annex II hereto,
and with respect to such letter dated such Time of Delivery, as to
such other matters as the Representatives may reasonably request and
in form and substance satisfactory to the Representatives;
(g) On the date of the Pricing Agreement with respect to
the Designated Securities and also at the Time of Delivery, the
independent petroleum reserve engineers of the Company who have
delivered a report that is included or incorporated by reference in
the Registration Statement or referred to or in a document
incorporated by reference in the Registration Statement shall have
furnished to you a letter, dated the date of delivery thereof, in form
and substance satisfactory to you, stating, as of the date of such
letter (or, with respect to matters involving changes or developments
since the respective dates as of which specified information with
respect to the oil and gas reserves and future net revenue of the
Company is given or incorporated in the Registration Statement as of a
date not more than five days prior to the date of such letter), the
conclusions and findings of such firm with respect to the oil and gas
reserve information and other matters as you may reasonably request;
(h) (i) Neither the Company nor any of its subsidiaries
shall have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus as
amended prior to the date of the Pricing Agreement relating to the
Designated Securities any loss or interference with the business of
the Company and its subsidiaries, taken as a whole, from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, and (ii) since the respective
dates as of which information is given in the Prospectus as amended
prior to the date of the Pricing Agreement relating to the Designated
Securities there shall not have been any change in the capital stock
or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus as amended prior to the date of the Pricing Agreement
relating to the Designated Securities, the effect of which, in any
such case described in
20
<PAGE> 21
Clause (i) or (ii), is in the judgment of the Representatives so
material and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated
Securities on the terms and in the manner contemplated in the
Prospectus as amended or supplemented relating to the Designated
Securities;
(i) On or after the date of the Pricing Agreement
relating to the Designated Securities (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock or other preferred securities by any "nationally
recognized statistical rating organization", as that term is defined
by the Commission for purposes of Rule 436(g)(2) under the Act, and
(ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities or preferred stock;
(j) On or after the date of the Pricing Agreement
relating to the Designated Securities there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange; (ii) a
suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New
York or Texas State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any
such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with
the public offering or the delivery of the Firm Designated Securities
or Optional Designated Securities or both on the terms and in the
manner contemplated in the Prospectus as first amended or supplemented
relating to the Designated Securities;
(k) The Designated Securities at each Time of Delivery
shall have been approved for listing, subject to notice of issuance,
on any exchange or market listed in the Pricing Agreement;
(l) The Company shall have complied with the provisions
of Section 5(c) hereof with respect to the furnishing of prospectuses
on the New York business day next succeeding the date of the Pricing
Agreement for such Designated Securities; and
(m) The Designated Trust and the Company shall have furnished
or caused to be furnished to the Representatives at each Time of
Delivery for the Designated Securities certificates of officers of the
Designated Trust and the Company satisfactory to the Representatives
as to the accuracy of the representations and warranties of the
Company herein at and as of such Time of Delivery, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to such Time of Delivery, as to the matters set
forth in subsections (a) and (h) of this Section and as to such other
matters as the Representatives may reasonably request.
8. (a) The Designated Trust and the Company, jointly and
severally, will indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
21
<PAGE> 22
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that
neither the Designated Trust nor the Company shall be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, any preliminary prospectus
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Designated Securities, or
any such amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by any Underwriter of Designated
Securities through the Representatives expressly for use in the Prospectus as
amended or supplemented relating to such Designated Securities.
(b) Each Underwriter will indemnify and hold harmless the
Designated Trust and the Company against any losses, claims, damages or
liabilities to which the Designated Trust or the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, any preliminary prospectus supplement, the
Registration Statement, the Prospectus as amended or supplemented and any other
prospectus relating to the Designated Securities, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Designated Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Designated Trust
and the Company by such Underwriter through the Representatives expressly for
use therein; and will reimburse the Designated Trust and the Company for any
legal or other expenses reasonably incurred by the Designated Trust or the
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in
each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the written consent of the indemnified party,
effect the settlement or compromise of, or consent to
22
<PAGE> 23
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified party is an actual or potential party
to such action or claim) unless such settlement, compromise or judgment (i)
includes an unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include any statement as
to, or an admission of, fault, culpability or a failure to act, by or on behalf
of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(or actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Designated Trust and the Company on the
one hand and the Underwriters of the Designated Securities on the other from
the offering of the Designated Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Designated Trust and the Company on the one hand and the
Underwriters of the Designated Securities on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Designated
Trust and the Company on the one hand and such Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Designated Trust and the
Company bear to the total underwriting discounts and commissions received by
such Underwriters. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The Designated Trust, the Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (d)
were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Underwriters of
Designated Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Designated Securities and not joint.
23
<PAGE> 24
(e) The obligations of the Designated Trust and the Company under
this Section 8 shall be in addition to any liability which the Designated Trust
and the Company may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
8 shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Designated Trust or the Company and to each person,
if any, who controls the Designated Trust or the Company within the meaning of
the Act.
9. (a) If any Underwriter shall default in its obligation to
purchase the Firm Designated Securities or Optional Designated Securities which
it has agreed to purchase under the Pricing Agreement relating to such
Designated Securities, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase such Designated
Securities on the terms contained herein. If within thirty-six hours after
such default by any Underwriter the Representatives do not arrange for the
purchase of such Firm Designated Securities or Optional Designated Securities,
as the case may be, then the Designated Trust shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to the Representatives to purchase such Designated
Securities on such terms. In the event that, within the respective prescribed
period, the Representatives notify the Designated Trust that they have so
arranged for the purchase of such Designated Securities, or the Designated
Trust notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Designated Trust shall
have the right to postpone a Time of Delivery for such Designated Securities
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus
as amended or supplemented, or in any other documents or arrangements, and the
Designated Trust agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust as provided in subsection (a) above, the aggregate
number of such Designated Securities which remains unpurchased does not exceed
one-eleventh of the aggregate number of the Firm Designated Securities or
Optional Designated Securities, as the case may be, to be purchased at the
respective Time of Delivery, then the Designated Trust shall have the right to
require each non-defaulting Underwriter to purchase the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under the Pricing Agreement relating
to such Designated Securities and, in addition, to require each non-defaulting
Underwriter to purchase its pro rata share (based on the number of Firm
Designated Securities or Optional Designated Securities, as the case may be,
which such Underwriter agreed to purchase under such Pricing Agreement) of the
Firm Designated Securities or Optional Designated Securities, as the case may
be, of such defaulting Underwriter or Underwriters for which such arrangements
have not been made; but nothing herein shall relieve a defaulting Underwriter
from liability for its default.
(c) If, after giving effect to any arrangements for the purchase
of the Firm Designated Securities or Optional Designated Securities, as the
case may be, of a defaulting Underwriter or Underwriters by the Representatives
and the Designated Trust as provided in subsection (a) above,
24
<PAGE> 25
the aggregate number of Firm Designated Securities or Optional Designated
Securities, as the case may be, which remains unpurchased exceeds one-eleventh
of the aggregate number of the Firm Designated Securities or Optional
Designated Securities, as the case may be, to be purchased at the respective
Time of Delivery, as referred to in subsection (b) above, or if the Designated
Trust shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Firm Designated Securities or Optional
Designated Securities, as the case may be, of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Firm Designated
Securities or such Optional Designated Securities, as the case may be, shall
thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Designated Trust or the Company, except for the expenses to be
borne by the Designated Trust and the Company and the Underwriters as provided
in Section 6 hereof and the indemnity and contribution agreements in Section 8
hereof; but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Designated Trust, the Company and the
several Underwriters, as set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results
thereof) made by or on behalf of any Underwriter or any controlling person of
any Underwriter, or the Designated Trust or the Company, or any officer or
director or controlling person of the Designated Trust or the Company, and
shall survive delivery of and payment for the Designated Securities.
11. If any Pricing Agreement or Over-allotment Option shall be
terminated pursuant to Section 9 hereof, neither the Designated Trust nor the
Company shall then be under any liability to any Underwriter with respect to
the Firm Designated Securities or Optional Designated Securities with respect
to which such Pricing Agreement shall have been terminated except as provided
in Sections 6 and 8 hereof; but, if for any other reason, Designated Securities
are not delivered by or on behalf of the Designated Trust or the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Designated Trust or the Company
shall then be under no further liability to any Underwriter with respect to
such Designated Securities except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if
any, as may be designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth in
the Pricing Agreement; and if to the Designated Trust or the Company shall be
delivered or sent by mail, telex or facsimile transmission to the address of
the Designated Trust or the Company, respectively, set forth in the
Registration Statement, Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting
such Questionnaire, which address
25
<PAGE> 26
will be supplied to the Designated Trust and the Company by the Representatives
upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Designated
Trust, the Company and, to the extent provided in Sections 8 and 10 hereof, the
officers and directors of the Designated Trust, the Company and each person who
controls the Designated Trust, the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the Designated
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, unless otherwise indicated, the term "business day" shall mean any
day when the Commission's office in Washington, D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
16. This Agreement and each Pricing Agreement may be executed by
any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
26
<PAGE> 27
Very truly yours,
Newfield Exploration Company
By: /s/ TERRY W. RATHERT
------------------------------------
Terry W. Rathert
Vice President - Planning and
Administration
Newfield Financial Trust I
By: Newfield Exploration Company,
as Depositor
By: /s/ TERRY W. RATHERT
------------------------------------
Terry W. Rathert
Vice President - Planning and
Administration
Newfield Financial Trust II
By: Newfield Exploration Company,
as Depositor
By: /s/ TERRY W. RATHERT
------------------------------------
Terry W. Rathert
Vice President - Planning and
Administration
27
<PAGE> 28
ANNEX I
PRICING AGREEMENT
[Name(s) of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
[c/o ________________________]
[Address]
[Date]
Ladies and Gentlemen:
Newfield Financial Trust [I][II], a statutory business trust formed
under the laws of the State of Delaware (the "Designated Trust"), and Newfield
Exploration Company, a Delaware corporation (the "Company"), propose, subject
to the terms and conditions stated herein and in the Underwriting Agreement,
dated August 1, 1999 (the "Underwriting Agreement"), to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") the Designated
Securities specified in Schedule II hereto (the "Designated Securities"
[consisting of Firm Designated Securities and any Optional Designated
Securities the Underwriters may elect to purchase]). The principal asset of the
Designated Trust consists of debt securities of the Company (the "Subordinated
Debentures"), as specified in Schedule II to this Agreement. The Designated
Securities will be guaranteed by the Company to the extent set forth in this
Agreement with respect to such Designated Securities (the "Guarantee"). The
Subordinated Debentures will be convertible into shares of Common Stock, par
value $.01 per share, of the Company (the "Stock"). Each of the provisions of
the Underwriting Agreement is incorporated herein by reference in its entirety,
and shall be deemed to be a part of this Agreement to the same extent as if
such provisions had been set forth in full herein; and each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Pricing Agreement, except that each
representation and warranty which refers to the Prospectus in Section 2 of the
Underwriting Agreement shall be deemed to be a representation or warranty as of
the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Designated Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined. The Representatives
designated to act on behalf of the Representatives and on behalf of each of the
Underwriters of the Designated Securities pursuant to Section 12 of the
Underwriting Agreement and the address of the Representatives referred to in
such Section 12 are set forth in Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, [(a)] the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto [, (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the
I-1
<PAGE> 29
Designated Trust agrees to issue and sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Designated Trust at the purchase price to the Underwriters set forth in
Schedule II hereto that portion of the number of Optional Designated Securities
as to which such election shall have been exercised and (c)] [(b)] the Company
agrees to issue the Subordinated Debentures and the Guarantee and to purchase
the Common Securities.
[The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of
covering sales of Designated Securities in excess of the number of the Firm
Designated Securities. Any such election to purchase Optional Designated
Securities may be exercised by written notice from the Representatives to the
Designated Trust and the Company given within a period of 30 calendar days
after the date of this Pricing Agreement, setting forth the aggregate number of
Optional Designated Securities to be purchased and the date on which such
Optional Designated Securities are to be delivered, as determined by the
Representatives, but in no event earlier than the First Time of Delivery or,
unless the Representatives and the Designated Trust otherwise agree in writing,
no earlier than two or later than ten business days after the date of such
notice.]
I-2
<PAGE> 30
If the foregoing is in accordance with your understanding, please sign
and return to us [one the Designated Trust, one for the Company and one for
each of the Representatives plus one for each counsel] counterparts hereof, and
upon acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof, including the provisions of the Underwriting
Agreement incorporated herein by reference, shall constitute a binding
agreement between each of the Underwriters and the Designated Trust and the
Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Designated Trust and the Company for examination, upon request, but without
warranty on the part of the Representatives as to the authority of the signers
thereof.
Very truly yours,
Newfield Exploration Company
By:_____________________________________
Name:
Title:
Newfield Financial Trust [I][II]
By: Newfield Exploration Company,
as Depositor
By:_____________________________________
Name:
Title:
Accepted as of the date hereof:
[Name(s) of Co-Representative(s)]
By:_________________________________________
On behalf of each of the Underwriters
I-3
<PAGE> 31
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF [MAXIMUM NUMBER
[FIRM] OF OPTIONAL
DESIGNATED DESIGNATED SECURITIES
SECURITIES WHICH
TO BE MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- --------- ---------
<S> <C> <C> <C>
[NAME(S) OF CO-REPRESENTATIVE(S)]
[NAMES OF OTHER UNDERWRITERS]
--------- ----------
Total ]
========= ==========
</TABLE>
I-4
<PAGE> 32
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
[___%] [Floating Rate] Convertible Quarterly Income Preferred Securities
LIQUIDATION AMOUNT:
$__________ per Designated Security
CONVERSION:
Each Security is convertible into ................. shares of Stock
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Designated Securities:
Maximum Number of Optional Designated Securities:
INITIAL OFFERING PRICE TO PUBLIC:
[$........ per Security] [Formula]
PURCHASE PRICE BY UNDERWRITERS:
[$........ per Security] [Formula]
[COMMISSION PAYABLE TO UNDERWRITERS:
$........ per Security in Federal (same-day) funds] [As compensation to the
Underwriters for their commitments hereunder, and in view of the fact that the
proceeds of the sale of the Designated Securities will be used by the
Designated Trust to purchase the Subordinated Debentures of the Company, the
Company hereby agrees to pay at each Time of Delivery to [the Designated
Representative], for the accounts of the several Underwriters, an amount equal
to $____ per Security for the Designated Securities to be delivered at each
Time of Delivery ($____ in the aggregate).]
FORM OF DESIGNATED SECURITIES:
[Definitive form, to be made available for checking [and packaging] at least
twenty-four hours prior to the Time of Delivery at the office of [The
Depository Trust Company or its designated custodian] [the Representatives]]
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
I-5
<PAGE> 33
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated as of ____ __, ____, between the
Company, as Depositor, ______________________, as Property Trustee,
____________________, as Delaware Trustee, and the several Holders of Trust
Securities
INDENTURE:
Indenture dated as of ____ __, ____, between the Company and
_____________________, as Indenture Trustee (the "Indenture")
GUARANTEE:
Guarantee Agreement dated as of ____ __, ____, between the Company and
___________________, as Guarantee Trustee
EXPENSE AGREEMENT:
Agreement as to Expenses and Liabilities, dated as of ____ __, ____ between the
Company and the Designated Trust
SUBORDINATED DEBENTURES:
[___%] [Floating Rate] Junior Subordinated Debentures, Series ___
MATURITY:
________ __, ____ [(subject to shortening such maturity to a date not earlier
than ____ __, ____)]
INTEREST RATE:
INTEREST PAYMENT DATES:
[_____________, _______________, _______________ and _____________] of each
year, commencing on _________, ____
EXTENSION PERIOD:
[20 quarters]
REDEMPTION PROVISIONS:
[The redemption provisions set forth in Section ___ of the Trust Agreement
shall apply to the Designated Securities]
I-6
<PAGE> 34
SINKING FUND PROVISIONS:
[No sinking fund provisions]
EXCHANGE FOR DESIGNATED SECURITIES:
[The Subordinated Debentures may be delivered in exchange for the Designated
Securities as provided in the Prospectus Supplement]
LISTING OF DESIGNATED SECURITIES:
[New York Stock Exchange][None].
[BLACKOUT PROVISIONS:
[Describe any blackout provisions with respect to the Designated Securities]]
TIME OF DELIVERY:
........ a.m. (New York City time), .................
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS:]
I-7
<PAGE> 35
ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the
accountants shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined
by them and included or incorporated by reference in the Registration
Statement or the Prospectus comply as to form in all material respects
with the applicable accounting requirements of the Act or the Exchange
Act, as applicable, and the related published rules and regulations
thereunder; and, if applicable, they have made a review in accordance
with standards established by the American Institute of Certified
Public Accountants of the consolidated interim financial statements,
selected financial data, pro forma financial information, financial
forecasts and/or condensed financial statements derived from audited
financial statements of the Company for the periods specified in such
letter, as indicated in their reports thereon, copies of which have
been [separately] furnished to the representative or representatives
of the Underwriters (the "Representatives", such term to include an
Underwriter or Underwriters who act without any firm being designated
as its or their representatives) [and are attached thereto];
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus and/or included in the Company's quarterly
reports on Form 10-Q incorporated by reference into the Prospectus as
indicated in their reports thereon copies of which [have been
separately furnished to the Representatives] [are attached thereto];
and on the basis of specified procedures including inquiries of
officials of the Company who have responsibility for financial and
accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i)
below comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with
respect to the consolidated results of operations and financial
position of the Company for the five most recent fiscal years included
in the Prospectus and included or incorporated by reference in Item 6
of the Company's Annual Report on Form 10-K for the most recent fiscal
year agrees with the corresponding amounts (after restatement where
applicable) in the audited consolidated financial statements for such
five fiscal years which were included or incorporated by reference in
the Company's Annual Reports on Form 10-K for such fiscal years;
(v) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of Regulation
S-K and on the basis of limited
II-1
<PAGE> 36
procedures specified in such letter nothing came to their attention as
a result of the foregoing procedures that caused them to believe that
this information does not conform in all material respects with the
disclosure requirements of items 301, 302, 402 and 503(d),
respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting
an examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus, inquiries of
officials of the Company and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(A) (i) the unaudited condensed consolidated
statements of income, consolidated balance sheets and
consolidated statements of cash flows included in the
Prospectus and/or included or incorporated by reference in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Exchange Act and the related published rules and
regulations, or (ii) any material modifications should be made
to the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus or included in the
Company's Quarterly Reports on Form 10-Q incorporated by
reference in the Prospectus, for them to be in conformity with
generally accepted accounting principles;
(B) any other unaudited income statement data and
balance sheet items included in the Prospectus do not agree
with the corresponding items in the unaudited consolidated
financial statements from which such data and items were
derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated
financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent
fiscal year;
(C) the unaudited financial statements which were
not included in the Prospectus but from which were derived the
unaudited condensed financial statements referred to in Clause
(A) and any unaudited income statement data and balance sheet
items included in the Prospectus and referred to in Clause (B)
were not determined on a basis substantially consistent with
the basis for the audited financial statements included or
incorporated by reference in the Company's Annual Report on
Form 10-K for the most recent fiscal year;
(D) any unaudited pro forma consolidated
condensed financial statements included or incorporated by
reference in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements
of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of those statements;
II-2
<PAGE> 37
(E) as of a specified date not more than five
days prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which
were outstanding on the date of the latest balance sheet
included or incorporated by reference in the Prospectus) or
any increase in the consolidated long-term debt of the Company
and its subsidiaries, or any decreases in consolidated net
current assets or stockholders' equity or other items
specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter; and
(F) for the period from the date of the latest
financial statements included or incorporated by reference in
the Prospectus to the specified date referred to in Clause (E)
there were any decreases in consolidated net revenues or
income from operations or the total or per share amounts of
consolidated net income or other items specified by the
Representatives, or any increases in any items specified by
the Representatives, in each case as compared with the
comparable period of the preceding year and with any other
period of corresponding length specified by the
Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the examination referred to in their
report(s) included or incorporated by reference in the Prospectus and
the limited procedures, inspection of minute books, inquiries and
other procedures referred to in paragraphs (iii) and (vi) above, they
have carried out certain specified procedures, not constituting an
examination in accordance with generally accepted auditing standards,
with respect to certain amounts, percentages and financial information
specified by the Representatives which are derived from the general
accounting records of the Company and its subsidiaries, which appear
in the Prospectus (excluding documents incorporated by reference), or
in Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Representatives or in documents
incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts,
percentages and financial information with the accounting records of
the Company and its subsidiaries and have found them to be in
agreement.
All references in this Annex II to the Prospectus shall be deemed to
refer to the Prospectus (including the documents incorporated by reference
therein) as defined in the Underwriting Agreement as of the date of the letter
delivered on the date of the Pricing Agreement for purposes of such letter and
to the Prospectus as amended or supplemented (including the documents
incorporated by reference therein) in relation to the applicable Designated
Securities for purposes of the letter delivered at the Time of Delivery for
such Designated Securities.
II-3
<PAGE> 1
EXHIBIT 1.2
PRICING AGREEMENT
August 9, 1999
Goldman, Sachs & Co.
Donaldson, Lufkin, & Jenrette
Securities Corporation
Merrill Lynch, Pierce, Fenner & Smith,
Incorporated
Dain Rauscher Wessels, a division of
Dain Rauscher Incorporated
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Newfield Financial Trust I, a statutory business trust formed under the
laws of the State of Delaware (the "Designated Trust"), and Newfield Exploration
Company, a Delaware corporation (the "Company"), propose, subject to the terms
and conditions stated herein and in the Underwriting Agreement dated August 1,
1999 (the "Underwriting Agreement"), to issue and sell to the Underwriters named
in Schedule I hereto (the "Underwriters") the Designated Securities specified in
Schedule II hereto (the "Designated Securities" consisting of Firm Designated
Securities and any Optional Designated Securities the Underwriters may elect to
purchase). The principal asset of the Designated Trust will consist of debt
securities of the Company (the "Subordinated Debentures"), as specified in
Schedule II to this Agreement. The Designated Securities will be guaranteed by
the Company to the extent set forth in this Agreement with respect to such
Designated Securities (the "Guarantee"). The Subordinated Debentures will be
convertible into shares of Common Stock, par value $.01 per share, of the
Company (the "Stock"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a
representation or warranty as of the date of the Underwriting Agreement in
relation to the Prospectus (as therein defined), and also a representation and
warranty as of the date of this Pricing Agreement in relation to the Prospectus
as amended or supplemented relating to the Designated Securities which are the
subject of this Pricing Agreement. Each reference to the Representatives herein
and in the provisions of the Underwriting Agreement so incorporated by reference
shall be deemed to refer to you. Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section 12
of the Underwriting Agreement and the address of the Representatives referred to
in such Section 12 are set forth in Schedule II hereto.
<PAGE> 2
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, (a) the Designated
Trust agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Designated
Trust, at the time and place and at the purchase price to the Underwriters set
forth in Schedule II hereto, the number of Firm Designated Securities set forth
opposite the name of such Underwriter in Schedule I hereto, (b) in the event and
to the extent that the Underwriters shall exercise the election to purchase
Optional Designated Securities, as provided below, the Designated Trust agrees
to issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Designated Trust at the
purchase price to the Underwriters set forth in Schedule II hereto that portion
of the number of Optional Designated Securities as to which such election shall
have been exercised and (c) the Company agrees to issue the Subordinated
Debentures and the Guarantee and to purchase the Common Securities.
The Designated Trust hereby grants to each of the Underwriters the
right to purchase at their election up to the number of Optional Designated
Securities set forth opposite the name of such Underwriter in Schedule I hereto
on the terms referred to in the paragraph above for the sole purpose of covering
sales of Designated Securities in excess of the number of the Firm Designated
Securities. Any such election to purchase Optional Designated Securities may be
exercised by written notice from the Representatives to the Designated Trust and
the Company given within a period of 30 calendar days after the date of this
Pricing Agreement, setting forth the aggregate number of Optional Designated
Securities to be purchased and the date on which such Optional Designated
Securities are to be delivered, as determined by the Representatives, but in no
event earlier than the First Time of Delivery or, unless the Representatives and
the Designated Trust otherwise agree in writing, no earlier than two or later
than ten business days after the date of such notice.
-2-
<PAGE> 3
If the foregoing is in accordance with your understanding, please sign
and return to us six counterparts hereof, and upon acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Designated Trust and the Company. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is or will be pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Designated Trust and the Company for
examination, upon request, but without warranty on the part of the
Representatives as to the authority of the signers thereof.
Very truly yours,
Newfield Exploration Company
By: /s/ TERRY RATHERT
--------------------------------------
Terry Rathert
Vice President - Planning and
Administration
Newfield Financial Trust I
By: Newfield Exploration Company,
as Depositor
By: /s/ TERRY RATHERT
---------------------------------
Terry Rathert
Vice President - Planning and
Administration
Accepted as of the date hereof:
Goldman, Sachs & Co.
/s/ GOLDMAN, SACHS & CO.
- ---------------------------------------
On behalf of each of the Underwriters
-3-
<PAGE> 4
SCHEDULE I
<TABLE>
<CAPTION>
NUMBER OF MAXIMUM NUMBER
FIRM OF OPTIONAL
DESIGNATED DESIGNATED
SECURITIES SECURITIES WHICH
TO BE MAY BE
UNDERWRITER PURCHASED PURCHASED
----------- ---------- ----------------
<S> <C> <C>
Goldman, Sachs & Co........................................... 1,250,000 187,500
Donaldson, Lufkin & Jenrette Securities Corporation........... 500,000 75,000
Merrill Lynch, Pierce, Fenner & Smith
Incorporated...................................... 500,000 75,000
Dain Rauscher Wessels, a division of Dain Rauscher
Incorporated............................... 250,000 37,500
--------- -------
TOTAL 2,500,000 375,000
========= =======
</TABLE>
I-1
<PAGE> 5
SCHEDULE II
TITLE OF DESIGNATED SECURITIES:
6 1/2% Cumulative Quarterly Income Convertible Preferred Securities, Series A
NUMBER OF DESIGNATED SECURITIES:
Number of Firm Designated Securities: 2,500,000
Maximum Number of Optional Designated Securities: 375,000
INITIAL OFFERING PRICE TO PUBLIC:
$50.00 per Security
PURCHASE PRICE BY UNDERWRITERS:
$50.00 per Security
COMMISSION PAYABLE TO UNDERWRITERS:
As compensation to the Underwriters for their commitments hereunder, and in view
of the fact that the proceeds of the sale of the Designated Securities will be
used by the Designated Trust to purchase the Subordinated Debentures of the
Company, the Company hereby agrees to pay at each Time of Delivery to the
Designated Representative, for the accounts of the several Underwriters, an
amount equal to $1.50 per Security for the Designated Securities to be delivered
at such Time of Delivery in Federal (same-day) funds.
LIQUIDATION AMOUNT:
$50 per Designated Security
DISTRIBUTION RATE:
6 1/2%
CONVERSION:
Each Security is convertible into 1.3646 shares of Stock
DISTRIBUTION PAYMENT DATES:
February 15, May 15, August 15 and November 15 of each year, commencing on
November 15, 1999
DISTRIBUTION DEFERRAL PERIOD:
20 quarters
II-1
<PAGE> 6
REDEMPTION PROVISIONS:
The redemption provisions set forth in Sections 4.2 and 4.4 of the Trust
Agreement shall apply to the Designated Securities
SINKING FUND PROVISIONS:
No sinking fund provisions
EXCHANGE FOR DESIGNATED SECURITIES:
The Subordinated Debentures may be delivered in exchange for the Designated
Securities as provided in the Prospectus Supplement
FORM OF DESIGNATED SECURITIES:
Book-entry only form represented by one or more global securities deposited with
The Depository Trust Company ("DTC") or its designated custodian, to be made
available for checking by the Representatives at least twenty-four hours prior
to the Time of Delivery at the office of DTC
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same-day) funds
TRUST AGREEMENT:
Amended and Restated Trust Agreement dated as of August 13, 1999, between the
Company, as Depositor, First Union National Bank, as Property Trustee, First
Union Trust Company, NA, as Delaware Trustee, and the several Holders of Trust
Securities
INDENTURE:
Indenture dated as of August 13, 1999, between the Company and First Union
National Bank, as Indenture Trustee (the "Indenture")
GUARANTEE:
Guarantee Agreement dated as of August 13, 1999, between Company and First Union
National Bank, as Guarantee Trustee
SUBORDINATED DEBENTURES:
Title:
6 1/2% Junior Subordinated Convertible Debentures, Series A
Maturity:
August 15, 2029 (subject to shortening such maturity to a date not earlier than
August 13, 2014)
II-2
<PAGE> 7
Interest Rate:
6 1/2%
Interest Payment Dates:
February 15, May 15, August 15 and November 15 of each year, commencing on
November 15, 1999
Extension Period:
20 quarters
LISTING OF DESIGNATED SECURITIES:
New York Stock Exchange.
BLACKOUT PROVISIONS:
The Company and the Designated Trust agree, and the Company's officers and
directors will agree (and delivery of written agreements to such effect shall be
a condition to the obligations of the Underwriters), that for a period of 90
days from the date of this Pricing Agreement, they will not, without the prior
written consent of Goldman, Sachs & Co., sell, offer to sell, grant any option
for the sale of or otherwise dispose of any Securities, any security convertible
into or exchangeable into or exercisable for the Securities or the Subordinated
Debentures or any debt substantially similar to the Subordinated Debentures or
any equity securities substantially similar to the Securities, any Stock or any
security convertible into or exchangeable into or exercisable for Stock or any
equity security substantially similar to the Stock, except for (i) issuances
pursuant to the exercise of warrants, stock options and convertible securities
outstanding on the date hereof and (ii) grants of options or shares of Stock
pursuant to existing employee benefit plans.
TIME OF DELIVERY:
10:00 a.m. (New York City time), on August 13, 1999
CLOSING LOCATION:
Baker & Botts, L.L.P.
3000 One Shell Plaza
910 Louisiana
Houston, Texas
NAME AND ADDRESS OF REPRESENTATIVES:
Designated Representatives: Goldman, Sachs & Co.
Address for Notices, etc.: 85 Broad Street
New York, New York
II-3
<PAGE> 1
EXHIBIT 4.1
================================================================================
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 August 13, 1999
NEWFIELD FINANCIAL TRUST I
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C> <C> <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..........................13
SECTION 2.6. Declaration of Trust................................................13
SECTION 2.7. Authorization to Enter into Certain Transactions....................14
SECTION 2.8. Assets of Trust.....................................................18
SECTION 2.9. Title to Trust Property.............................................18
ARTICLE 3 PAYMENT ACCOUNT.....................................................18
SECTION 3.1. Payment Account.....................................................18
ARTICLE 4 DISTRIBUTIONS; REDEMPTION;
EXCHANGE; CONVERSION................................................18
SECTION 4.1. Distributions.......................................................18
SECTION 4.2. Redemption..........................................................19
SECTION 4.3. Conversion..........................................................22
SECTION 4.4. Special Event Exchange or Redemption................................24
SECTION 4.5. Subordination of Common Securities..................................26
SECTION 4.6. Payment Procedures..................................................26
SECTION 4.7. Tax Returns and Reports.............................................26
SECTION 4.8. Payment of Taxes, Duties, Etc. of the Trust.........................27
SECTION 4.9. Payments under Indenture............................................27
ARTICLE 5 TRUST SECURITIES CERTIFICATES.......................................27
SECTION 5.1. Initial Ownership...................................................27
SECTION 5.2. The Trust Securities Certificates...................................27
SECTION 5.3. Delivery of Trust Securities Certificates...........................27
SECTION 5.4. Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer................................28
SECTION 5.5. Mutilated, Destroyed, Lost or Stolen Trust
Securities Certificates.............................................30
SECTION 5.6. Persons Deemed Securityholders......................................30
</TABLE>
-i-
<PAGE> 3
<TABLE>
<S> <C> <C> <C>
SECTION 5.7. Access to List of Securityholders' Names and Addresses...............30
SECTION 5.8. Maintenance of Office or Agency......................................31
SECTION 5.9. Appointment of Paying Agent..........................................31
SECTION 5.10. Ownership of Common Securities by Depositor..........................32
SECTION 5.11. Global Securities; Non-Global Securities;
Common Securities Certificate........................................32
SECTION 5.12. Notices to Clearing Agency...........................................33
SECTION 5.13. Definitive Preferred Securities Certificates.........................33
SECTION 5.14. Rights of Securityholders............................................34
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING.............................34
SECTION 6.1. Limitations on Voting Rights.........................................34
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..............................................36
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...............................................49
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
</TABLE>
-ii-
<PAGE> 4
<TABLE>
<S> <C> <C> <C>
SECTION 8.16. Number of Trustees..................................................51
SECTION 8.17. Delegation of Power.................................................51
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........................................................56
SECTION 10.4. Governing Law.......................................................56
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 I
EXHIBIT B -- Form of Common Securities Certificate of Newfield Financial Trust I
EXHIBIT C -- Form of Preferred Securities Certificate of Newfield
Financial Trust I
EXHIBIT D -- Notice of Conversion
-iii-
<PAGE> 5
NEWFIELD FINANCIAL TRUST I*
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
</TABLE>
-iv-
<PAGE> 6
<TABLE>
<CAPTION>
TRUST INDENTURE TRUST AGREEMENT
ACT SECTION SECTION
<S> <C> <C>
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.
-v-
<PAGE> 7
AMENDED AND RESTATED TRUST AGREEMENT, dated as of August 13, 1999 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, as Delaware trustee (in such capacity, the "Delaware Trustee"), (iv)
David A. Trice, an individual, Terry W. Rathert, an individual, and Susan G.
Riggs, 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 entering into 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 Pricing 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:
(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;
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<PAGE> 8
(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 Susan G. Riggs, each solely in his or her capacity as
Administrative Trustee of the Trust and not in his or her 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:
(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
-2-
<PAGE> 9
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.
"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.
-3-
<PAGE> 10
"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 Pricing 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 B.
"Common Security" means a common security of the Trust
representing an undivided beneficial interest in the assets of the Trust, having
a Liquidation Amount of $50 and having the rights provided therefor in this
Trust Agreement.
"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 Consolidated Transactions Tape, or, if Common Stock is not listed
or admitted to trading on the New York Stock Exchange on such day, on the
principal national securities exchange on which Common Stock is listed or
admitted to trading, if Common Stock is listed on a national securities
exchange, or the Nasdaq National Market, or, if Common Stock is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which Common Stock may be listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of Common
Stock in the over-the-counter market on the day in question as reported by
-4-
<PAGE> 11
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 6 1/2% junior
subordinated convertible 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.
"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
-5-
<PAGE> 12
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 August 13, 1999 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).
"Liquidation Distribution" has the meaning specified in
Section 9.4(d).
"1940 Act" means the Investment Company Act of 1940, as
amended.
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<PAGE> 13
"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 D.
"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;
(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.
-7-
<PAGE> 14
"Optional Redemption Price" means with respect to the
Preferred Securities, (a) the Tax Redemption Price in the event that the
Depositor elects to redeem the Debentures upon the occurrence of a Tax Event, or
(b) 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 August 15 in each of the
following years indicated:
<TABLE>
<CAPTION>
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
<S> <C> <C> <C> <C>
2002 104.55% 2006 101.95%
2003 103.90% 2007 101.30%
2004 103.25% 2008 100.65%
2005 102.60% 2009 and thereafter 100.00%
</TABLE>
"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
(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
-8-
<PAGE> 15
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 C.
"Preferred Security" means a preferred security of the Trust
representing an undivided beneficial interest in the assets of the Trust and
designated the Newfield Financial Trust I 6 1/2% Cumulative Quarterly Income
Convertible Preferred Securities, Series A, having a Liquidation Amount of $50
and having the rights provided therefor in this Trust Agreement.
"Pricing Agreement" means the Pricing Agreement dated as of
August 9, 1999 among the Trust, the Depositor and the Underwriters.
"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.
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<PAGE> 16
"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 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
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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 a de minimis amount of other taxes, duties,
assessments or other governmental charges.
"Tax Redemption Price" means with respect to each Preferred
Security, (i) if the Debentures are redeemed as a result of the occurrence of a
Tax Event prior to August 15, 2002, the greatest of (a) the liquidation amount
of the Preferred Securities, (b) the average of the highest and lowest reported
sale prices, regular way, of the Preferred Securities over the five trading days
immediately prior to the day on which notice of such redemption is given, and
(c) the average of the highest and lowest reported sale prices, regular way, of
Preferred Securities on the trading day immediately prior to the day on which
notice of such redemption is given, or (ii) if the Debentures are redeemed as a
result of the occurrence of a Tax Event on or after August 15, 2002, the
liquidation amount of the Preferred Securities.
"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.
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"Underwriters" with respect to the Preferred Securities, means
Goldman, Sachs & Co., Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated.
"Underwriters' Over-Allotment Option" means the Underwriters'
option to purchase up to an additional 375,000 Preferred Securities pursuant to
the Pricing Agreement.
"Underwriters' Over-Allotment Option Closing Date" means the
closing of the transactions contemplated by the Underwriters' Over-Allotment
Option.
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 Pricing
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 Pricing
Agreement Preferred Securities Certificates, in an aggregate amount of 2,500,000
Preferred Securities having an aggregate Liquidation Amount of $125,000,000,
against receipt of the aggregate purchase price of such Preferred Securities of
$125,000,000, which amount the Administrative Trustees shall promptly deliver to
the Property Trustee. In addition, in connection with the Underwriters'
Over-Allotment Option, an Administrative Trustee, on behalf of the Trust, may
execute in accordance with Section 5.2 and deliver to the Underwriters Preferred
Securities Certificates, representing up to an additional aggregate amount of
375,000 Preferred Securities having an aggregate Liquidation Amount of up to
$18,750,000, against receipt of the aggregate purchase price
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of such Preferred Securities, 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, 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 77,320 Common Securities having an aggregate Liquidation Amount of
$3,866,000 against receipt of the aggregate purchase price of such Common
Securities from the Depositor of the sum of $3,866,000. Contemporaneously
therewith, an Administrative Trustee, 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 $128,866,000, 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 $128,866,000. In addition, in connection with any
Underwriters' Over-Allotment Option Closing Date, 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, representing Common Securities having an aggregate Liquidation Amount
of at least 3% of the aggregate Liquidation Amount of Common Securities issued
pursuant to this sentence and the Preferred Securities delivered pursuant to the
Underwriters' Over-Allotment Option. Contemporaneously therewith, 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 the
aggregate liquidation amount of the Trust Securities delivered to the
Underwriters and the Depositor in connection with the Underwriters'
Over-Allotment Option.
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.
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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 (and any actions taken by an Administrative
Trustee in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):
(A) to issue and sell the Trust Securities and to
invest the proceeds therefrom in the Debentures, 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
Underwriters' Over-Allotment Option, 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 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;
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(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).
(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;
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(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 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.
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(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;
(iv) to negotiate, and to execute and deliver, on behalf of
the Trust, the Pricing Agreement and the Underwriting Agreement
incorporated therein;
(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).
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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 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 August 13, 1999, 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
February 15, May 15, August 15 and November 15 of each year, commencing on
November 15, 1999 (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").
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(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 6 1/2% 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, including pursuant to the occurrence
of a Tax Event, 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 Optional
Redemption Price, and upon a mandatory redemption (as set forth in the
Indenture) of Debentures, the proceeds from such redemption shall be applied to
redeem Trust Securities, having an aggregate Liquidation Amount equal to the
aggregate principal amount of the Debentures so redeemed by the Depositor, at
the Redemption Price. 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;
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(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 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 or Optional Redemption Price,
as the case may be. 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
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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) 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.
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(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 1.3646 shares of Common
Stock for each Trust Security (which is equivalent to a conversion
price of approximately $36.64 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 (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
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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
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.
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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 but not in part, for cash within 90 days following the
occurrence of such Tax Event at the Tax Redemption Price plus any accrued and
unpaid interest and any Additional Interest (as defined in the Indenture) to,
but excluding, the date fixed for such redemption. 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 Tax Redemption Price plus any accrued and unpaid interest and any
Additional Interest (as defined in the Indenture) to, but excluding, the date
fixed for such redemption on a pro rata basis, except that if an Event of
Default has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the Tax
Redemption Price.
(b) Notice of any exchange pursuant to this Section 4.4 (an
"Exchange Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to the
Depositor and to each record Holder of Trust Securities to be exchanged not
fewer than 30 nor more than 60 days prior to the date fixed for exchange
thereof. For purposes of the calculation of the date of exchange and the dates
on which notices are given pursuant to this paragraph (b), an Exchange Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to each Holder. Each Exchange Notice shall be
addressed to each Holder of Trust Securities at the address of such Holder
appearing in the books and records of the Trust. Each Exchange Notice shall
state: (A) the exchange date; (B) the aggregate Liquidation Amount and any
unpaid Distributions (including any Additional 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.
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(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 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.
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(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.
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
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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. 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 Preferred
Securities Certificates shall be authenticated by the Property Trustee. Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this 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, and contemporaneously with the execution and delivery of this
Trust Agreement, an Administrative Trustee, on behalf of the Trust, shall
execute and deliver (i) to the Underwriters, one or more Global
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Certificates, registered in the name of the nominee of the Clearing Agency for
the benefit of the Underwriters, in an aggregate amount of 2,500,000 Preferred
Securities having an aggregate Liquidation Amount of $125,000,000, against
receipt of the aggregate purchase price of such Preferred Securities of
$125,000,000, and (ii) to the Depositor, one or more Common Securities
Certificates, registered in the name of the Depositor, in an aggregate amount of
77,320 Common Securities having an aggregate Liquidation Amount of $3,866,000,
against receipt of the aggregate purchase price of such Common Securities of
$3,866,000. On any Underwriters' Over-Allotment Option Closing Date, an
Administrative Trustee, on behalf of the Trust shall execute and deliver (i) to
the Underwriters one or more Global Certificates, registered in the name of the
nominee of the Clearing Agency for the benefit of the Underwriters, representing
Preferred Securities in an aggregate Liquidation Amount as provided in Section
2.4 and (ii) to the Depositor, one or more Common Securities Certificates,
registered in the name of the Depositor, representing Common Securities in an
aggregate Liquidation Amount as provided in Section 2.5.
A Preferred Security Certificate shall not be valid until
authenticated by the manual or facsimile signature of an authorized signatory of
the Property Trustee. The signature shall be conclusive evidence that the
Preferred 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 Preferred Security
Certificates for original issue.
The Property Trustee may appoint an authenticating agent
acceptable to the Administrative Trustees to authenticate Preferred Security
Certificates. An authenticating agent may authenticate Preferred 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 Preferred 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 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.
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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
Preferred 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 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
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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, as
necessary, 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 communicate
with other Securityholders with respect to their rights under this Trust
Agreement or
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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 Charlotte, North Carolina 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 230
South Tryon Street, Ninth Floor, Charlotte, North Carolina 28288-1179,
Attention: Corporate Trustee Administration, 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.
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SECTION 5.10. Ownership of Common Securities by Depositor. On
the Closing Date and on any Underwriters' Over-Allotment Option 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
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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).
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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. 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.
If any Event of Default has occurred and is continuing, 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
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 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 Outstanding
Securities; 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 Securities,
except by a subsequent vote of the Holders of the Securities. The Property
Trustee shall notify all
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Holders of record of the 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 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.
The provisions of this Section 6.1 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.
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.
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.
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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.
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
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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 the Debentures against the
Depositor. If the Property Trustee fails to enforce its rights as Holder of the
Debentures after a period of 30 days has elapsed since such Holder's written
request to the Property Trustee to enforce such rights, 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
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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 banking corporation duly
organized, validly existing and in good standing under the federal laws;
(b) the Delaware Trustee is a national association duly
organized, validly existing and in good standing under federal law;
(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 similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
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(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 and on any Underwriters' Over-Allotment Option 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 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
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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;
(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
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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
Liquidation Amount of the Preferred Securities that the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding.
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The provisions of Section 6.1 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 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. 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
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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;
(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
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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
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
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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 individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject
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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 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.
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(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 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
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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.
(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
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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.
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
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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, 1999, 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.
(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.
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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 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.
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ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1. Dissolution upon Expiration Date. Unless earlier
dissolved, the Trust shall automatically dissolve on August 15, 2031 (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 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 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
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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 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
-53-
<PAGE> 60
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, convert 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, conversion,
consolidation, 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, conversion, consolidation, 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, conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease the Depositor has received an Opinion of Counsel to the effect
that (a) such merger, conversion, consolidation, 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), (b) following such merger,
conversion, consolidation, 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,
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<PAGE> 61
conversion, 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 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 any other entity or permit
any other entity to merge with or into, convert into, consolidate, amalgamate,
or replace it if such merger, conversion, consolidation, amalgamation,
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.
(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
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<PAGE> 62
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, 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.
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
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<PAGE> 63
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 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: Vice President -- Planning and Administration." 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.
-57-
<PAGE> 64
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 estopped 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 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
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<PAGE> 65
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> 66
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:
------------------------------------
Terry W. Rathert
Vice President -- Planning and
Administration
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
---------------------------------------
SUSAN G. RIGGS,
as Administrative Trustee
-60-
<PAGE> 67
EXHIBIT A -- Certificate of Trust of
Newfield Financial Trust I
A-1
<PAGE> 68
EXHIBIT B -- Form of Common Securities
of Newfield Financial Trust I
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 I
Common Securities
(Liquidation Amount $50 per Common Security)
Newfield Financial Trust I, 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 August 13, 1999 (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, dated as
of August 13, 1999, 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.
B-1
<PAGE> 69
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this ____ day of August, 1999.
NEWFIELD FINANCIAL TRUST I
By:
-------------------------------------
Name:
------------------------------------
As Administrative Trustee
B-2
<PAGE> 70
EXHIBIT C -- Form of Preferred Securities of
Newfield Financial Trust I
[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, a New York
corporation ("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 DTC to the Trust (as defined below) 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.]
C-1
<PAGE> 71
Certificate Number ______ Number of Preferred Securities ________
CUSIP NO. 651291205
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
NEWFIELD FINANCIAL TRUST I
6 1/2% Cumulative Quarterly Income Convertible Preferred Securities, Series A
(Liquidation Amount $50 per Preferred Security)
Newfield Financial Trust I, 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 I 6 1/2%
Cumulative Quarterly Income Convertible Preferred Securities, Series A
(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 August 13, 1999, 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 August 13,
1999, 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.
C-2
<PAGE> 72
IN WITNESS WHEREOF, one of the Administrative Trustees of the
Trust has executed this certificate this _____ day of August, 1999.
NEWFIELD FINANCIAL TRUST I
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: August __, 1999
First Union National Bank,
as Property Trustee
By:
---------------------------------------
Name:
-------------------------------------
Authorized Signatory
C-3
<PAGE> 73
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)
C-4
<PAGE> 74
[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>
<S> <C> <C> <C> <C>
Amount of increase in
Liquidation Amount of Liquidation Amount of
this Global Certificate Amount of decrease in this Global Certificate Signature of authorized
including upon exercise Liquidation Amount of following such decrease officer of Trustee or
Date Made of over-allotment option this Global Certificate or increase Securities Custodian
</TABLE>
C-5
<PAGE> 75
EXHIBIT D -- Notice of Conversion
NOTICE OF CONVERSION
To: First Union National Bank
as Property Trustee of
Newfield Financial Trust I
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 August 13, 1999, by David A. Trice, Terry W. Rathert and Susan G.
Riggs, as Administrative Trustees, First Union Trust Company, National
Association, as Delaware Trustee, First Union National Bank, as Property
Trustee, and Newfield Exploration Company, as Depositor. 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.
D-1
<PAGE> 76
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.
D-2
<PAGE> 1
EXHIBIT 4.3
________________________________________________________________________________
NEWFIELD EXPLORATION COMPANY
to
FIRST UNION NATIONAL BANK,
as Trustee
_________________________________________________________
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
Dated as of August 13, 1999
_________________________________________________________
6 1/2% JUNIOR SUBORDINATED CONVERTIBLE DEBENTURES,
SERIES A DUE 2029
________________________________________________________________________________
<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 August 13, 1999.
<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
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.3 Form of Reverse of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Notice of Shortened Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.5 Additional Provisions Required in Global Debenture . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.6 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.7 Initial Issuance to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.11 Deferrals of Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.13 Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.15 Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . 36
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures . . . . . . . . . . . . . . . . . . 38
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . . 45
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SECTION 6.5 May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . 49
SECTION 6.13 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.2 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.6 Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.3 Money for Debenture Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 10.5 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.6 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.7 Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.8 Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.9 Payment of Expenses of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.2 Selection of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.4 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.5 Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.6 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.7 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.8 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.9 Exchange of Trust Securities for Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of Debentures . . . . . . . . . . . . . . . . . 67
SECTION 12.4 No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.5 Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.7 Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.9 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . 70
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 12.14 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . 71
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ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.2 Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.3 Expiration of Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.4 Conversion Price Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.5 Fundamental Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.6 Notice of Adjustments of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.7 Prior Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.8 Certain Additional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon Conversion . . . . . . . . . . . . . . . . . 83
SECTION 13.10 Trustee Not Responsible for Determining Conversion Price
or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
</TABLE>
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of August
13, 1999, 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, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its 6 1/2% Junior
Subordinated Convertible Debentures, Series A (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 I, a
Delaware business trust (the "Trust"), of preferred undivided beneficial
interests in the Trust (the "Preferred Securities") and common undivided
beneficial 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; and
WHEREAS, 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 purposes 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
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<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", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Debentures that is in arrears beyond the Interest
Payment Date therefor (without regard to any Extension 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.
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<PAGE> 10
"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Debentures.
"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 last reported sales
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
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<PAGE> 11
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 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
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<PAGE> 12
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.
"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
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
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<PAGE> 13
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 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
Sections 2.2 and 2.3 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 date
specified in the Debentures as the fixed date on which an installment of
interest on such Debentures is due and payable.
"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 Maturity Date or by declaration of acceleration, call
or redemption or otherwise.
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"Maturity Date" has the meaning specified in Section 2.2.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Non Book-Entry Preferred Securities" has the meaning
specified in Section 3.15.
"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
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<PAGE> 15
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
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.
"Pricing Agreement" means the Pricing Agreement dated August
9, 1999 by and among Newfield Financial Trust I, Newfield Exploration Company
and the Underwriters.
"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.
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"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.
"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 $19.54 (which is an
amount equal to 66 2/3% of the reported last sales price for Company Common
Stock on the NYSE Consolidated Transactions Tape on August 9, 1999), 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.
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<PAGE> 17
"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 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.
"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.
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<PAGE> 18
"Tax Redemption Price" means with respect to each $50
principal amount of Debentures, (i) if the Debentures are redeemed as a result
of the occurrence of a Tax Event prior to August 15, 2002, the greatest of (a)
the principal amount of the Debenture, (b) the average of the highest and
lowest reported sale prices, regular way, of the Preferred Securities over the
five trading days immediately prior to the day on which notice of such
redemption is given, and (c) the average of the highest and lowest reported
sale prices, regular way, of Preferred Securities on the trading day
immediately prior to the day on which notice of such redemption is given, or
(ii) if the Debentures are redeemed as a result of the occurrence of a Tax
Event on or after August 15, 2002, the principal amount of such Debenture. For
purposes of clauses (b) and (c) above, if the Debentures have been distributed
in exchange for Preferred Securities, the references to sales prices shall be
deemed to refer to the sales prices of the Debentures.
"Transaction" has the meaning specified in Section 13.5(a).
"Trust" has the meaning specified in the first recital of this
Indenture.
"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
Goldman, Sachs & Co., Donaldson, Lufkin & Jenrette Securities Corporation,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Dain Rauscher Wessels, a
division of Dain Rauscher Incorporated.
"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
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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;
(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.
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(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,
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.
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(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
(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.
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<PAGE> 22
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.
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 Maturity Date 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 Maturity Date,
provided that no interest shall accrue for the period from and after such
Interest Payment Date or Redemption Date or Maturity Date.
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
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<PAGE> 23
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. The form of the
face of a Debenture shall be substantially as follows:
6 1/2% Junior Subordinated Convertible Debenture, Series
A due August 15, 2029
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 August 15, 2029 (the "Maturity Date"),
provided, if a Tax Event occurs, then the Company will have the right (a) prior
to the dissolution of Newfield Financial Trust I, to shorten the Maturity Date
of the Debentures to the minimum extent required, but not earlier than August
13, 2014, or (b) to direct the Property Trustee to dissolve Newfield Financial
Trust I (if not previously dissolved) and shorten the Maturity Date of the
Debentures to the minimum extent required, but not earlier than August 13,
2014, in each case such that in the Opinion of Counsel to the Company, which
counsel shall have a national tax and securities practice, after shortening the
Maturity Date, interest paid on the Debentures will be deductible for federal
income tax purposes, and to pay interest on said principal sum from August 13,
1999 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 for payment subject to deferral as set
forth herein in arrears on February 15, May 15, August 15 and November 15 of
each year, commencing November 15, 1999, at the rate of 6 1/2% per annum.
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 or
facsimile 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:_____________________________
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<PAGE> 24
SECTION 2.3 Form of Reverse of Debenture. The form of
the reverse of a Debenture shall be substantially as follows:
This Debenture is one of a duly authorized issue of Debentures
of the Company (the "Debentures") limited to the aggregate principal amount of
$___________ issued under a Junior Convertible Subordinated Indenture, dated as
of August 13, 1999 (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 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"),
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<PAGE> 25
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 Maturity Date 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 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 I 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
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<PAGE> 26
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 August 15, 2002, 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.
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
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<PAGE> 27
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.
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.
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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.
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<PAGE> 29
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.
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<PAGE> 30
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
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<PAGE> 31
Stock Exchange Medallion Program (SEMP); or (iv) in such other
guarantee programs acceptable to the Trustee.
SECTION 2.4 Notice of Shortened Maturity Date.
Whenever the Maturity Date is shortened in accordance with Section 2.2, a
notice stating the Maturity Date has been adjusted and setting forth the
adjusted Maturity Date shall as soon as practicable be mailed by the Company to
all record holders of the Debentures at their last addresses as they appear on
the Securities Register.
SECTION 2.5 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 2.6 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 2.7 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.
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<PAGE> 32
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures. Except 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, the aggregate principal amount of Debentures that may be authenticated and
delivered under this Indenture is $128,866,000; provided that additional
Debentures with an aggregate principal amount of up to $19,329,900 may be
authenticated and delivered under this Indenture in connection with the
exercise by the Underwriters of their option to purchase additional Preferred
Securities for the purpose of covering sales in excess of 2,500,000 Preferred
Securities granted to the Underwriters in the Pricing Agreement.
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. 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
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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 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.
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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 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
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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 of 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.
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 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
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deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of 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
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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.
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 Maturity Date 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
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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.
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
Debentures 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
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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 ("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
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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 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 the
Maturity Date 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
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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 Maturity Date; or
(C) have been redeemed or tendered for
conversion;
(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);
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(b) default in the payment of the principal of (or
premium, if any, on) the Debentures when due whether at the Maturity
Date, 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 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
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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 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.
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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
(b) default is made in the payment of the principal of
(and premium, if any, on) the Debentures whether at the Maturity Date
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 judgment 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
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(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
(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,
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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.
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
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Debenture at 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 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.
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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,
(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
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(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.
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
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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,
(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
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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.
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,
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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;
(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
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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 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.
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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.
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
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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.
(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
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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.
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
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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 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.
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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.
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):
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(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.
(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, 1999.
(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
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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).
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
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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.
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:
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(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 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
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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 Maturity Date of the principal of, or the
Installment Payment Dates for 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 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.
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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.
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
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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 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
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(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 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
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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 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
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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
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, including
commissions, discounts and expenses payable pursuant to the Pricing
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
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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.
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 60 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;
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(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 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.
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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 Interest Payment Date 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 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
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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 August 15, 2002 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 August 15 in each
of the following years at the indicated Redemption Price (expressed as a
percentage of the principal 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>
2002 104.55% 2006 101.95%
2003 103.90% 2007 101.30%
2004 103.25% 2008 100.65%
2005 102.60% 2009 and thereafter 100.00%
</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 but not in part, for cash within 90 days
following the occurrence of such Tax Event at the Tax Redemption Price plus any
accrued and unpaid interest, including Additional Interest, to the date fixed
for such redemption.
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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 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 all the Debentures 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
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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 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,
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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 the Maturity Date, 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.
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.
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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
(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,
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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.
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.
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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.
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
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Stock at an initial conversion rate of 1.3646 shares of Company Common Stock
for each $50 in aggregate principal amount of Debentures (equal to a conversion
price of approximately $36.64 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 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 Interest Payment
Date 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
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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.
(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
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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
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.
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(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 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 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
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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 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
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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 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.
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(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 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 20 days, provided,
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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 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
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<PAGE> 87
"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.
(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 August
14, 2000, and the twelve-month periods commencing August 15,
2000 and August 15, 2001, the product of 106.50%, 105.85% and
105.20%, 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
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<PAGE> 88
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.
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;
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<PAGE> 89
(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 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
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<PAGE> 90
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.
(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
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<PAGE> 91
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.
* * * *
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<PAGE> 92
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:
------------------------------------
Terry W. Rathert
Vice President -- Planning and
Administration
FIRST UNION NATIONAL BANK,
as Trustee
By:
------------------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 4.5
================================================================================
GUARANTEE AGREEMENT
Newfield Exploration Company
and
First Union National Bank
Relating to the Preferred Securities of
Newfield Financial Trust I
Dated as of August 13, 1999
================================================================================
<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
PAGE
<TABLE>
<S> <C> <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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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> <C>
ARTICLE 7 TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
</TABLE>
-iii-
<PAGE> 5
GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of August 13, 1999, 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 I, a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Trust Agreement (the
"Trust Agreement"), dated as of August 13, 1999, among the Trustees named
therein and the Guarantor, as Depositor, the Issuer is issuing 2,500,000
(2,875,000 if the underwriters' option to purchase additional securities is
exercised in full) of its 6 1/2% Convertible Quarterly Income Preferred
Securities, Series A (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,
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").
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"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 August 13, 1999, 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
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association, or government or any agency or political subdivision thereof, or
any other entity of whatever nature.
"Responsible Officer" means, with respect to the Guarantee Trustee,
any 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
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provide such List of Holders at any time the Preferred Securities are
represented by one or more Global Certificates (as defined in the
Indenture). The Guarantee Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its
obligations under Section 311(a), Section 311(b) and Section 312(b) of
the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee. Within 60 days
after December 31 in each calendar year, commencing with December 31, 1999, 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
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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 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.
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(d) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) prior to the occurrence of any Event of
Default and after the curing or waiving of all such Events of
Default that may have occurred;
(A) the duties and obligations of the
Guarantee Trustee shall be determined solely by the
express provisions of this Guarantee Agreement, and
the Guarantee Trustee shall not be liable except for
the performance of such duties and obligations as
are specifically set forth in this Guarantee
Agreement, and 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
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of this Guarantee Agreement or indemnity satisfactory to it
against such risk or liability is not reasonably assured to
it.
SECTION 3.2 Certain Rights of Guarantee Trustee.
(a) Subject to the provisions of Section 3.1:
(i) The Guarantee Trustee may 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,
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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.
(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
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indemnity shall survive any removal of the Guarantee Trustee by the Guarantor
or the resignation by the Guarantee Trustee.
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.
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The Guarantee Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument in writing executed by the
Guarantee Trustee and delivered to the Guarantor, which resignation
shall not take effect until a Successor Guarantee Trustee has been
appointed and has accepted such appointment by an instrument in
writing executed by such Successor Guarantee Trustee and delivered to
the Guarantor and the resigning Guarantee Trustee.
(d) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery to the Guarantor of an instrument of
resignation, the resigning Guarantee Trustee may petition, at the
expense of the Guarantor, any court of competent jurisdiction for
appointment of a Successor Guarantee Trustee. Such court may
thereupon, after prescribing such notice, if any, as it may deem
proper, appoint a Successor Guarantee Trustee.
(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 offset 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:
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(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition relating to
the Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the Distributions (other than an extension of
time for payment of Distributions that results from the extension of
any interest payment period on the Debentures as 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
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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.
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 Guarantor and with any guarantee now or hereafter
entered into by the Guarantor 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.
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(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 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
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<PAGE> 19
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.
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:
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<PAGE> 20
(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:
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 I
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 National Bank
230 South Tryon Street, Ninth Floor
Charlotte, North Carolina 28288-1179
Phone No.: (704) 383-6150
Facsimile No.: (704) 383-7316
Attention: Corporate Trustee Administration
(c) if given to any Holder, at the address set forth on
the books and records of the Issuer.
All notices hereunder shall be deemed to have been given when received
in 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.
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<PAGE> 21
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 or, if not defined in Section 1.1, in
the Trust Agreement as in effect on the date hereof;
(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.
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<PAGE> 22
THIS GUARANTEE AGREEMENT is executed as of the day and year first above
written.
NEWFIELD EXPLORATION COMPANY
By:
----------------------------
Terry W. Rathert
Vice President --
Planning and Administration
FIRST UNION NATIONAL BANK,
as Guarantee Trustee
By:
----------------------------
Name:
Title:
<PAGE> 1
EXHIBIT 8.1
August 13, 1999
Newfield Exploration Company
363 N. Sam Houston Parkway E.
Suite 2020
Houston, Texas 77060
Ladies and Gentlemen:
We have acted as counsel to Newfield Exploration Company, a Delaware
corporation ("Newfield"), and Newfield Financial Trust I and Newfield Financial
Trust II, each of which is a Delaware statutory business trust (collectively,
the "Trusts"), relating to the registration of Debt Securities, Preferred Stock,
Depositary Shares, Common Stock, Securities Warrants, Preferred Securities of
the Trusts and Debentures in a total aggregate amount of $275,000,000. In that
connection, reference is made to the registration statement under the Securities
Act of 1933, as amended, of Newfield and the Trusts on Form S-3 (Registration
No. 333-59391) filed with the Securities and Exchange Commission (the
"Commission") on July 17, 1998, as amended by Pre- Effective Amendment No. 1
thereto filed with the Commission on September 4, 1998 and declared effective by
the Commission on September 4, 1998 (as amended, the "Registration Statement"),
including a prospectus dated September 4, 1998 (the "Prospectus") and a
prospectus supplement dated August 9, 1999 (the "Prospectus Supplement")
describing the 6 1/2% Cumulative Quarterly Income Convertible Preferred
Securities, Series A of Newfield Financial Trust I (the "Preferred Securities")
and the 6 1/2% Junior Subordinated Convertible Debentures, Series A due 2029 of
Newfield (the "Junior Subordinated Debentures"). Capitalized terms not otherwise
defined herein shall have the meaning specified in the Prospectus and the
Prospectus Supplement.
We have examined the Prospectus, the Prospectus Supplement, and such
other documents and corporate records as we have deemed necessary or appropriate
for purposes of this opinion. In addition, we have assumed that the Junior
Subordinated Debentures and the Preferred Securities will be issued in
accordance with the operative documents described in the Prospectus and the
Prospectus Supplement.
<PAGE> 2
August 13, 1999
Page 2
Based on the assumptions contained in the Prospectus Supplement, (i) in
our opinion Newfield Financial Trust I will be classified for federal income tax
purposes as a grantor trust and not as an association taxable as a corporation
and (ii) the statements of legal conclusion set forth under the heading "Federal
Income Tax Consequences" in the Prospectus Supplement reflect our opinions on
the material United States federal income tax consequences of the ownership and
disposition of the Preferred Securities.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to this Firm in the section captioned
"Federal Income Tax Consequences" in the Prospectus Supplement. In giving this
consent, 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 Commission thereunder.
Very truly yours,
/s/ Vinson & Elkins, L.L.P.
