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As filed with the Securities and Exchange Commission on November 15, 1999
Registration No. 333-____________
===================================================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
----------------------
<S> <C> <C>
CHEVRON CHEVRON CAPITAL CHEVRON CANADA CAPITAL
CORPORATION CORPORATION COMPANY
(Exact name of registrant (Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter) as specified in its charter)
Delaware Delaware Nova Scotia, Canada
(State or other jurisdiction (State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization) of incorporation or organization)
94-0890210 94-3343413 98-0213478
(I.R.S. Employer (I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.) Identification No.)
575 Market Street 575 Market Street 500 5th Avenue S.W.
San Francisco, CA 94105 San Francisco, CA 94105 Calgary, Alberta T2P OL7
(415) 894-7700 (415) 894-7700 (403) 234-5000
(Address, including zip code, and (Address, including zip code, and (Address, including zip code, and
telephone number, including telephone number, including telephone number, including
area code, of registrant's principal area code, of registrant's principal area code, of registrant's principal
executive offices) executive offices) executive offices)
Lydia I. Beebe, Lydia I. Beebe Lydia I. Beebe,
Corporate Secretary Vice President and Secretary Corporate Secretary
Chevron Corporation Chevron Capital Corporation Chevron Corporation
575 Market Street 575 Market Street 575 Market Street
San Francisco, California 94105 San Francisco, California 94105 San Francisco, California 94105
(415) 894-7700 (415) 894-7700 (415) 894-7700
(Name, address, including zip code, (Name, address, including zip code, (Name, address, including zip code,
and telephone number, including area and telephone numbe, including area and telephone number, including area
code, of agent for service) code, of agent for service) code, of agent for service)
Copies to:
Ruth Modisette, Esq. James F. Munsell, Esq.
Karen A. Dempsey, Esq. Cleary, Gottlieb, Steen & Hamilton
David M. Koeninger, Esq. One Liberty Plaza
Pillsbury Madison & Sutro LLP New York, New York 10006-1470
P.O. Box 7880
San Francisco, California 94120-7880
----------------------
<FN>
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this registration statement as determined by market conditions.
If the only securities being registered on this form are being offered pursuant to dividend or interest
reinvestment plans, please check the following box. / /
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / _______________
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering./ / _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / /
</FN>
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CALCULATION OF REGISTRATION FEE
==============================================================================================================================
Title of Each Amount To Proposed Proposed
Class of Securities Be Registered Maximum Offering Maximum Aggregate Amount of
To Be Registered (1) Price Per Unit (2) Offering Price (2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt securities $2,000,000,000 100% $2,000,000,000 $556,000
- ------------------------------------------------------------------------------------------------------------------------------
Guarantees of the debt ---- ---- ---- ----
securities
==============================================================================================================================
<FN>
(1) Or, if any securities are issued at original issue discount, such greater amount as shall result in aggregate proceeds
of $2,000,000,000 to the issuer.
(2) Estimated solely for the purpose of computing the registration fee.
The registrants hereby amend this registration statement on such date or dates as may be necessary to delay its
effective date until the registrants shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of the Securities Act of 1933 or until this
registration statement shall become effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
</FN>
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<PAGE>
INFORMATION CONTAINED IN THIS PROSPECTUS IS SUBJECT TO COMPLETION OR AMENDMENT.
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS
NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR
SALE OF THESE SECURITIES IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED NOVEMBER 15, 1999
PROSPECTUS
- ----------
$2,000,000,000
Chevron Corporation
---------------
Chevron Capital Corporation
Chevron Canada Capital Company
unconditionally guaranteed by
Chevron Corporation
---------------
DEBT SECURITIES
Any of Chevron, Chevron Capital Corporation or Chevron Canada Capital
Company may offer from time to time debt securities up to an amount resulting in
aggregate proceeds of $2,000,000,000, or an equivalent amount if the securities
are denominated in another currency. Market conditions at the time of sale will
determine the terms of any securities offered.
Securities offered by Chevron Capital Corporation or Chevron Canada Capital
Company will be unconditionally guaranteed by Chevron.
Any of Chevron, Chevron Capital Corporation or Chevron Canada Capital
Company may issue securities in one or more series with the same or various
maturities, at par, at a premium or with an original issue discount. The
securities may be offered through underwriters or agents, or directly to
investors or dealers. At the issuer's option and as described in the relevant
prospectus supplement, the securities may be denominated in U.S. dollars or in
any other currency.
This prospectus describes generally the terms of the securities. A
supplement or supplements to this prospectus will describe the specific terms
of each issuance of securities. If any offering involves underwriters, dealers
or agents, arrangements with them will be described in the prospectus
supplement that relates to that offering.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is November __, 1999.
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a "shelf" registration statement that Chevron,
Chevron Capital Corporation and Chevron Canada Capital Company have filed with
the United States Securities and Exchange Commission. By using a shelf
registration statement, any of Chevron, Chevron Capital Corporation or Chevron
Canada Capital Company may sell debt securities in one or more offerings up to a
total dollar amount of $2,000,000,000. This prospectus only provides a general
description of the securities that may be offered. Each time Chevron, Chevron
Capital Corporation or Chevron Canada Capital Company sells securities under the
shelf registration, a supplement to this prospectus containing specific
information about the terms of the securities will be provided. Any prospectus
supplement may also add, update or change information contained in this
prospectus. Before purchasing any securities, you should read carefully both
this prospectus and any supplement, together with the additional information
described under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
Chevron files annual, quarterly and special reports, proxy statements and
other information with the Securities and Exchange Commission. Chevron's filings
are also available to the public over the Internet at its web site
(www.chevron.com) or at the Commission's website (www.sec.gov). You can read and
copy any materials Chevron files with the Commission at the Commission's public
reference rooms at:
- 450 Fifth Street, N.W., Washington, D.C. 20549;
- Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661; and
- Seven World Trade Center, New York, New York 10048.
You can obtain information about the operation of the Commission's public
reference rooms by calling the Commission at 1-800-SEC-0330. Chevron is not
required to, and does not, provide annual reports to holders of its debt
securities unless specifically requested to do so.
Chevron has filed a registration statement on Form S-3 with the Commission
under the Securities Act of 1933, as amended, relating to the securities offered
by this prospectus. This prospectus does not contain all of the information set
forth in the registration statement. Some information has been omitted in
accordance with the rules and regulations of the Commission. For further
information, please refer to the registration statement and the exhibits and
schedules filed with it.
INFORMATION INCORPORATED BY REFERENCE
The Commission allows Chevron to "incorporate by reference" into this
prospectus the information in documents that Chevron files with it. This means
that Chevron can disclose important information to you by referring you to other
documents which it has filed separately with the Commission. The information
incorporated by reference is an important part of this prospectus, and the
information that Chevron files with the Commission after the date hereof will
automatically update and may supercede this information. Chevron incorporates by
reference the documents listed below and any future filings which Chevron makes
with the Commission under sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, as amended, until the termination of the offering of
securities by this prospectus.
(a) Chevron's Annual Report on Form 10-K for the year ended December 31,
1998; and
(b) Chevron's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1999, June 30, 1999 and September 30, 1999.
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Upon written or oral request, Chevron will provide, without charge, to each
person to whom a copy of this prospectus has been delivered, a copy of any or
all of the documents described above which have been or may be incorporated by
reference in this prospectus but not delivered with this prospectus. Requests
for copies should be directed to:
Chevron Corporation
6001 Bollinger Canyon Rd.
Building E
San Ramon, California 94583
Attention: Treasurer
Telephone: (925) 842-8049
CHEVRON CORPORATION
Chevron Corporation, a Delaware corporation, manages its investments in,
and provides administrative, financial and management support to, its U.S. and
foreign subsidiaries and affiliates that engage in fully integrated petroleum
operations, chemicals operations and coal mining. Chevron operates in the United
States and approximately 90 other countries. Petroleum operations consist of
exploring for, developing and producing crude oil and natural gas; refining
crude oil into finished petroleum products; marketing crude oil, natural gas and
the many products derived from petroleum; and transporting crude oil, natural
gas and petroleum products by pipelines, marine vessels, motor equipment and
rail car. Chemicals operations include the manufacture and marketing of a wide
range of chemicals for industrial uses.
Chevron's executive offices are located at 575 Market Street, San
Francisco, California 94105 (telephone: (415) 894-7700).
CHEVRON CAPITAL CORPORATION
Chevron Capital Corporation is a direct wholly owned subsidiary of Chevron,
incorporated on April 29, 1999 and organized under the laws of the state of
Delaware. Its principal executive offices are located at 575 Market Street, San
Francisco, California 94105 (telephone (415) 894-7700). Its business activities
consist primarily of providing funds to Chevron for general corporate purposes.
CHEVRON CANADA CAPITAL COMPANY
Chevron Canada Capital Company is an indirect wholly owned subsidiary of
Chevron, incorporated on November 5, 1999 and organized under the laws of Nova
Scotia, Canada. Its principal executive offices are located at 500 5th Avenue,
Calgary, Alberta T2P OL7 (telephone (403) 234-5000). Its business activities
consist primarily of providing funds to non-U.S. affiliates of Chevron for
general corporate purposes.
USE OF PROCEEDS
Except as any accompanying prospectus supplement may state, the net
proceeds from the sale of securities will be used for general corporate
purposes, including refinancing a portion of the existing commercial paper
borrowings or long-term or short-term debt of Chevron or its subsidiaries, or
financing capital programs.
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FORWARD-LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement contains or
incorporates by reference forward-looking statements that have been made
pursuant to the provisions of the Private Securities Litigation Reform Act of
1995. These forward-looking statements are not historical facts, but rather are
based on current expectations, estimates and projections. Words such as
"anticipates," "expects," "intends," "plans," "believes," "seeks," "estimates"
and similar expressions are intended to identify forward-looking statements.
These statements are not guarantees of future performance and are subject to
risks, uncertainties and other factors, some of which are beyond the control of
Chevron, Chevron Capital Corporation and Chevron Canada Capital Company, are
difficult to predict and could cause actual results to differ materially from
those expressed or forecasted in the forward-looking statements. You should not
place undue reliance on these forward-looking statements, which speak only as of
the date of this prospectus or the prospectus supplement containing the
forward-looking statements. Neither Chevron, Chevron Capital Corporation nor
Chevron Canada Capital Company is obligated to update these statements or
publicly release the result of any revision to them to reflect events or
circumstances after the date of this prospectus or the applicable prospectus
supplement, or to reflect the occurrence of unanticipated events.
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<PAGE>
DESCRIPTION OF THE SECURITIES
The following is a general description of the securities that may be
offered by this prospectus. This summary is not meant to be a complete
description of the securities. The accompanying prospectus supplement will
contain the material terms and conditions of the securities described in this
prospectus.
Each series of securities will be issued under one of the following
indentures:
- Indenture, dated as of June 15, 1995, as supplemented by the
First Supplemental Indenture dated October 13, 1999, each
being between Chevron and The Chase Manhattan Bank, as
trustee.
- Indenture to be entered into among Chevron, as guarantor,
Chevron Capital Corporation and The Chase Manhattan Bank, as
trustee.
- Indenture to be entered into among Chevron, as guarantor,
Chevron Canada Capital Company and a trustee to be named.
Each indenture provides for the issuance of securities without limitation as to
aggregate principal amount. See "Description of the Indentures," below.
For each series of securities, the following terms will be described in the
prospectus supplement applicable to that series:
- the identity of the issuer and the applicable indenture;
- the designation of the series of securities;
- the aggregate principal amount of the series of securities;
- the stated maturity or maturities for payment of principal of the
series of securities;
- any sinking fund or analogous provisions;
- the rate or rates at which the series of securities bears interest,
the method of calculating the interest rate or rates and the interest
payment dates for the series;
- the currencies in which principal of and interest and any premium
on the series of securities will be payable, if other than U.S.
dollars;
- the redemption date or dates, if any, and the redemption price or
prices and other applicable redemption provisions for the series of
securities;
- whether the series will be issued as one or more global securities,
and if so, the depository for the securities;
- if not issued as global securities, the denominations in which
the securities of the series will be issuable, if other than
denominations of $1,000 and integral multiples of $1,000;
- the date from which interest on the series of securities will accrue;
- the basis upon which interest on the series of securities will be
computed, if other than a 360-day year of twelve 30-day months;
- if other than the principal amount of the series of securities, the
portion of the principal amount of the series of securities that will
be payable upon any declaration of acceleration of the maturity of
the series of securities pursuant to the applicable indenture;
- if other than the trustee under the applicable indenture, the person \
or persons who shall be registrar for the series of securities;
- the record date; and
- any other term or provision relating to the series of securities
which is not inconsistent with the provisions of the applicable
indenture.
5
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DESCRIPTION OF THE INDENTURES
The following description of the indentures is only a summary. A copy of
each indenture is filed as an exhibit to, or incorporated by reference in, this
registration statement. We encourage you to read each indenture in its entirety.
General
Chevron may issue securities from time to time under an Indenture dated as
of June 15, 1995, as supplemented by the First Supplemental Indenture, dated as
of October 13, 1999, each being between Chevron and The Chase Manhattan Bank, as
trustee, and which are collectively referred to in this prospectus as the
Chevron indenture. Chevron Capital Corporation may issue securities from time to
time under an Indenture to be entered into among Chevron, as guarantor, Chevron
Capital Corporation and The Chase Manhattan Bank, as trustee. Chevron Canada
Capital Company may issue securities from time to time under an Indenture to be
entered into among Chevron, as guarantor, Chevron Canada Capital Company and a
trustee to be named. Chevron Capital Corporation and Chevron Canada Capital
Company are referred to in this prospectus as the subsidiary issuers and their
indentures are collectively referred to as the subsidiary indentures. The
subsidiary indentures, together with the Chevron indenture, are referred to in
this prospectus as the indentures.
The following terms apply to securities issued under any of the indentures.
Terms of the indentures which apply only to securities issued by the subsidiary
issuers appear below, under "The Subsidiary Indentures."
Covenants of Chevron
Capitalized terms used in the following description are defined terms. The
definitions of these terms are located under "--Definitions applicable to
covenants."
Corporate existence
In each indenture, Chevron agrees that, so long as securities are
outstanding under the indenture, Chevron will not sell substantially all of its
assets, dissolve, or consolidate or merge with any corporation unless the
purchaser of the assets or the surviving company in any merger or consolidation:
- is incorporated and existing under the laws of one of the states of
the United States of America;
- assumes Chevron's obligations under the indenture and the securities
issued under the indenture; and
- is not, after the sale, merger or consolidation, in default under any
provision of the indenture.
Securities to be secured in certain events
In each indenture, Chevron agrees that prior to consummating any
consolidation or merger that would subject any Principal Property to any
mortgage, security interest, pledge, lien or other encumbrance, it will secure
all securities outstanding under the indenture equally and ratably with the debt
or other obligation secured by the encumbrance resulting from the consolidation
or merger. Chevron may also secure, together with the securities issued under
the indenture, any of its other indebtedness or any indebtedness it guarantees
that ranks equally with securities issued under the indenture. This covenant
does not apply to debts or obligations that Chevron or any Restricted Subsidiary
could have incurred without securing securities issued under the indenture
pursuant to the covenant "Limitation on liens," described in this prospectus.
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Limitations on liens
In each indenture, Chevron agrees that it will not, and it will not permit
any Restricted Subsidiary to, issue, assume or guarantee any debt secured by a
mortgage, pledge or lien on any Property, without effectively providing that the
securities outstanding under that indenture shall be equally and ratably
secured. Chevron may also secure, together with the securities issued under that
indenture, any of its other indebtedness or any indebtedness it guarantees that
ranks equally with securities issued under that indenture. This covenant does
not apply to debt secured by:
- liens on Property of any corporation existing at the time the
corporation becomes a Restricted Subsidiary;
- liens on Property existing at the time Chevron acquired the Property;
- liens on Property that secure debt incurred for the payment of all or
any part of the purchase price of the Property;
- liens on Property that secure a debt incurred prior to, at the
time of or within two years after the acquisition of the Property for
the purpose of financing all or any part of the purchase price of the
Property;
- liens on Property to secure a debt incurred to fund all or any part
of the cost of exploration, drilling or development of the Property
or the cost of improvements to the Property;
- liens that secure debt owing by a Restricted Subsidiary to Chevron or
any subsidiary of Chevron;
- liens on personal property, other than
shares of stock or indebtedness of any Restricted Subsidiary, to
secure loans maturing in less than one year;
- liens on Property to secure debt incurred in connection with any
financing done in accordance with the provisions of section 103 of
the Internal Revenue Code of 1986, as amended; or
- any extension, renewal or replacement, in whole or in part, of
any lien referred to in the above list or any debt secured by
a lien referred to in the above list.
For purposes of this covenant, the following types of transactions are
deemed not to create debt secured by a lien:
- the sale or other transfer of oil, gas or other minerals in
place for a period of time until, or in an amount such that,
the purchaser will realize from the sale or transfer a
specified amount of money, however determined, or a specified
amount of the minerals, or the sale or other transfer of any
other interest in property of the character commonly referred
to as a "production payment"; and
- the mortgage or pledge of any property of Chevron or any
Subsidiary in favor of the United States, or any state, or any
department, agency or instrumentality of either, to secure
partial, progress, advance or other payments to Chevron or any
Subsidiary pursuant to the provisions of any contract or
statute.
Notwithstanding the restrictions contained in this covenant, Chevron may,
and may permit any Restricted Subsidiary to, issue, assume or guarantee debt
without equally and ratably securing the securities issued under the indenture,
provided that the aggregate amount of that debt and Attributable Debt with
respect to sale and leaseback arrangements does not exceed ten percent of
Chevron's Consolidated Adjusted Tangible Assets.
7
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Limitation on sale and leaseback
In each indenture, Chevron agrees that it will not, and it will not permit
any Restricted Subsidiary to, enter into any sale and leaseback arrangement
unless either:
- Chevron or any Restricted Subsidiary could create debt secured
by a mortgage pursuant to the covenant "Limitation on liens"
on the property to be leased without equally and ratably
securing the securities issued under that indenture; or
- within one year before or after the sale or transfer, Chevron
has applied or applies an amount equal to the greater of (a)
the net proceeds of the sale of the leased property or (b) the
fair value of the leased property at the time of the sale and
leaseback transaction to:
- the voluntary retirement of debt of Chevron
or a Restricted Subsidiary or debt of a
Subsidiary that matures more than one year
after being incurred; or
- the acquisition, development or improvement of a Principal
Property.
This covenant does not apply to temporary leases for a term of not more
that three years or sale or transfer and leaseback transactions involving the
acquisition or improvement of Principal Properties, provided within one year
before or after the sale or transfer, Chevron has applied or applies an amount
equal to the greater of (a) the net proceeds of the sale of the leased property
or (b) the fair value of the leased property at the time of the transaction to:
- the voluntary retirement of debt of Chevron or a Restricted
Subsidiary or debt of a Subsidiary that matures more than one
year after being incurred; or
- the acquisition, development or improvement of a Principal Property.
Definitions applicable to covenants
Terms used in this description of Chevron's covenants under the indentures
have the following meanings:
"Attributable Debt" for a sale-leaseback transaction means the lesser of
- the fair value of the property subject to the transaction (as
determined by Chevron's Board of Directors); or
- the present value of rent for the remaining term of the lease.
"Consolidated Adjusted Tangible Assets" means the consolidated total assets
of Chevron and its subsidiaries as reflected in Chevron's most recent
consolidated balance sheet prepared in accordance with Chevron's accounting
policies and generally accepted accounting principles, less
- goodwill, trademarks, trade names, patents, unamortized debt discount
and expense and other deferred charges;
- total current liabilities except for (a) notes and loans
payable, (b) current maturities of long-term debt and (c)
current maturities of obligations under capital leases; and
- deferred credits and other noncurrent obligations, including
minority interests in consolidated subsidiaries and
reserves--employee annuity plans and other reserves which may
hereafter be defined in Chevron's accounting policies.
"Principal Property" means any oil or gas producing property located in the
United States of America, onshore or offshore, or any refinery or manufacturing
plant located in the United States of America, in each case now owned or
hereafter acquired by Chevron or a Restricted Subsidiary, except any oil or gas
producing property, refinery or plant that in the opinion of the Board of
Directors of Chevron is not of
8
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material importance to the total business conducted by Chevron and its
consolidated Subsidiaries.
"Property" means Principal Properties or any shares of stock of or
indebtedness of any Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary of Chevron that has
substantially all of its assets located in the United States of America and owns
a Principal Property, and in which Chevron's direct or indirect capital
investment, together with the outstanding balance of
- any loans or advances made to such Subsidiary by Chevron or any other
Subsidiary and
- any debt of such Subsidiary guaranteed by Chevron or any other
Subsidiary,
exceeds $100 million.
"Subsidiary" of Chevron means any corporation at least a majority of the
outstanding securities of which having ordinary voting power (other than
securities having such power only by reason of the happening of a contingency)
is owned by Chevron or by one or more Subsidiaries or by Chevron and one or more
Subsidiaries.
Any additional covenants
Any additional covenants with respect to any particular series of
securities issuea under an indenture will be described in the relevant
prospectus supplement. The indentures do not contain any covenants specifically
designed to protect securityholders against a reduction in the creditworthiness
of Chevron in the event of a highly leveraged transaction. The indentures do
not limit the amount of additional indebtedness that Chevron, or any of its
subsidiaries, may incur.
Events of Default
The indentures define an event of default with respect to any particular
series of securities as any one of the following events:
- default for 30 days in any payment of interest on any security issued
under the indenture;
- default in the payment of the principal of or any premium on
any security issued under the indenture;
- default in the satisfaction of any sinking fund payment obligation
relating to any series of securities issued under the indenture;
- failure to perform any agreement or covenant in the securities of any
series, in the indenture or any supplemental indenture, for 90 days
after receiving notice of the failure;
- particular events of bankruptcy, insolvency or similar reorganization
of Chevron.
An event of default with respect to one series of securities will not
necessarily constitute an event of default with respect to any other series of
securities. If an event of default with respect to the securities of any one or
more series occurs and is continuing, the trustee or the holders of not less
than 25% in principal amount of the securities of each such series may declare
the principal amount of all of the securities of that series, together with any
accrued interest, to be immediately due and payable. In the case of any original
issue discount securities, the terms of those securities will specify what
portion of the principal amount the holders may declare due and payable upon a
continuing event of default. At any time after a declaration of acceleration
with respect to debt securities of any series has been made, but before a
judgment or decree based on acceleration has been obtained, the holders of a
majority in principal amount of the outstanding securities of that series may,
under some circumstances, rescind and annul the acceleration.
If an event of default occurs and is continuing, the trustee under the
applicable indenture may pursue any available remedy by proceeding at law or in
equity to collect the payment of principal or any premium
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or interest on the securities of the series to which the default relates or to
enforce the performance of any provision of that series of securities or the
indenture under which the securities were issued.
The holders of a majority in principal amount of the outstanding securities
of any series may waive any past event of default with respect to that series
and its consequences, except a continuing default:
- in the payment of the principal of or any redemption premium or
interest on such securities;
- in the satisfaction of any sinking fund obligation relating
to such series of securities; or
- in respect of a covenant or provision of the indenture under which
the series of securities was issued which cannot be modified or
amended without the consent of the holder of each security affected
by the default.
Modifications of the Indenture
Without the consent of any holder of securities, Chevron and the trustee,
in the case of the Chevron indenture, or Chevron, the subsidiary issuer and the
trustee, in the case of a subsidiary indenture, may enter into a supplemental
indenture to amend the indenture or the securities issued under that indenture
for any of the following purposes:
- to cure any ambiguity, defect or inconsistency;
- to permit a successor to assume Chevron's obligations or the
obligations of any subsidiary issuer under the indenture as
permitted by the indenture;
- to eliminate or change any provision of the indenture, provided the
change does not adversely affect the rights of any holder of
outstanding securities;
- to provide for the issuance and establish the terms and conditions
of securities of any series;
- to add to Chevron's covenants or the covenants of any subsidiary
issuer further covenants, restrictions or conditions for the
protection of the holders of all or any particular series of
securities; or
- to appoint, at the request of the trustee, a successor trustee for a
particular series of securities.
Chevron and the trustee and, if applicable, a subsidiary issuer, may modify
or amend an indenture and the rights and obligations of Chevron and, if
applicable, the subsidiary issuer, or the rights and obligation of the holders
of the securities at any time with the consent of the holders of not less than a
majority in aggregate principal amount of all series of securities then
outstanding and affected by the proposed modification or amendment, voting as
one class. However, without the consent of the holder of each affected
outstanding security, no amendment or modification may, among other things:
- change the fixed maturity or redemption date of any outstanding
security;
- reduce the rate of interest on any outstanding security;
- alter the method of determining the rate of interest on any
outstanding security;
- extend the time of payment of interest;
- reduce the principal amount of any outstanding security;
- reduce any premium payable upon the redemption of any outstanding
security;
- change the coin or currency in which any outstanding securities or
the interest thereon are payable;
- impair the securityholders' right to institute suit for the
enforcement of payment;
- reduce the percentage of the holders of outstanding securities whose
consent is required for any modification or amendment;
- change the time of payment or reduce the amount of any minimum
sinking account or fund payment; or
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<PAGE>
- modify any provisions of the indenture relating to the amendment of
the indenture or the creation of a supplemental indenture, unless the
change increases the rights of the securityholders.
Defeasance and Discharge
Each indenture provides that Chevron and, if applicable, the subsidiary
issuer, may terminate and be fully discharged from their obligations with
respect to any series of securities issued under that indenture if Chevron or
the subsidiary issuer deposits in trust with the applicable trustee money,
direct obligations of the U.S.A. or obligations guaranteed by the U.S.A.
sufficient to pay principal, premium and interest, if any, on that series of
securities to the date of its redemption or maturity. In the case of securities
issued in a currency other than U.S. currency, Chevron or the subsidiary issuer
may instead deposit direct obligations of or obligations guaranteed by the
government that issued that currency. In order to terminate their obligations in
this manner, Chevron or the subsidiary issuer must deliver to the trustee an
opinion of counsel to the effect that the holders of that series of securities
will not recognize income, gain or loss for federal income tax purposes as a
result.
Chevron may also terminate its obligations to comply with covenants
applicable to any outstanding securities, including the covenants described in
"--Covenants of Chevron," if it or any subsidiary issuer deposits in trust with
the trustee money, direct obligations of the U.S.A. or obligations guaranteed by
the U.S.A. sufficient to pay principal, premium and interest, if any, on that
series of securities to the date of its redemption or maturity.
Governing Law
The indentures and each security issued under the indentures are to be
deemed to be contracts made under, and are to be construed in accordance with,
the laws of the State of New York.
Concerning the Trustees
The Chase Manhattan Bank is the trustee of the Chevron indenture and will
be the trustee of the Chevron Capital Corporation indenture. The trustee of the
Chevron Canada Capital Company indenture will be named. In certain instances,
Chevron or the holders of a majority of the then outstanding principal amount of
the securities may remove a trustee and appoint a successor trustee. A trustee
may become the owner or pledgee of any of the securities issued under an
indenture with the same rights it would have if it were not the trustee.
Each trustee and any successor trustee must be a corporation:
- organized and doing business as a commercial bank under the laws of
the United States or of any state within the United States or of the
District of Columbia;
- authorized under applicable laws to exercise corporate trust powers;
- having a combined capital and surplus of at least $100 million; and
- subject to examination by federal or state or District of Columbia
authority.
From time to time, a trustee may also serve as trustee under other indentures
relating to securities issued by Chevron or affiliated companies and may engage
in commercial transactions with Chevron and affiliated companies.
The Subsidiary Indentures
In addition to the general terms above, each subsidiary indenture includes
the following terms.
Guarantee
Under the terms of each subsidiary indenture, Chevron fully and
unconditionally guarantees to the holders of the securities the full and prompt
payment of the interest, principal and any redemption premium on the securities.
Chevron's guarantee will remain in effect until the entire principal amount, all
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<PAGE>
interest and any premium on the securities has been paid in full or otherwise
discharged in accordance with the terms of the applicable subsidiary indenture.
Chevron's obligations under its guarantee contained in each subsidiary indenture
are unconditional, irrespective of any invalidity, illegality, irregularity or
unenforceability of any security or that subsidiary indenture. The trustee has
the right to proceed first and directly against Chevron, without first
proceeding against any subsidiary issuer or exhausting any other remedies it may
have, in the event of a default in:
- the payment of interest on any security;
- the payment of principal of a security;
- the payment of any premium on any security; or
- any sinking fund payment.
Successors to Subsidiary Issuers
All of the rights and obligations of a subsidiary issuer under any
subsidiary indenture and the securities outstanding under a subsidiary indenture
may be assigned and transferred to:
- another person with which the subsidiary is consolidated or merged
or which acquires by conveyance or transfer any of the properties or
assets of the subsidiary;
- Chevron; or
- a corporation, all of the outstanding shares of which, other
than directors' qualifying shares, are owned directly or
indirectly by Chevron.
Provided that the requirements of this covenant have been met, upon the
assignment or transfer, all of the obligations of the subsidiary issuer under
the applicable indenture and the securities issued under that indenture shall
cease and the subsidiary shall be released from its liability as obligor and
from all other obligations under the applicable indenture. In connection with
any assignment other than to Chevron, either
- Chevron's guarantee will remain in full force and effect or
- Chevron will execute a new guarantee agreement containing
substantially the same terms as those set forth in the
applicable indenture.
Any successor to any subsidiary under an indenture must be organized and
existing under the laws of the U.S.A. or one of the states of the U.S.A. In the
event a subsidiary issuer assigns all of its rights and obligations in respect
of an indenture and any outstanding securities to Chevron, the covenants of
Chevron described above under "--Covenants of Chevron" and any other covenants
for the benefit of any series of securities issued under that indenture will
remain in effect.
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<PAGE>
PLAN OF DISTRIBUTION
Securities may be sold in any one or more of the following ways:
- directly to purchasers or a single purchaser;
- through agents;
- through dealers;
- through one or more underwriters acting alone or through underwriting
syndicates led by one or more managing underwriters;
each as may be identified in a prospectus supplement relating to an issuance of
securities.
If securities described in a prospectus supplement are underwritten, the
prospectus supplement will name each underwriter of the securities. Only
underwriters named in a prospectus supplement will be deemed to be underwriters
of the securities offered by that prospectus supplement. Prospectus supplements
relating to underwritten offerings of securities will also describe:
- the discounts and commissions to be allowed or paid to the
underwriters;
- all other items constituting underwriting compensation;
- the discounts and commissions to be allowed or paid to dealers, if
any; and
- the exchanges, if any, on which the securities will be listed.
Securities may be sold directly by Chevron or any of the subsidiary issuers
through agents designated by Chevron or a subsidiary issuer from time to time.
Any agent involved in the offer or sale of securities, and any commission
payable by Chevron or a subsidiary issuer to such agent, will be set forth in
the prospectus supplement. Unless otherwise indicated in the prospectus
supplement, any agent involved in the offer or sale of securities will be acting
on a best efforts basis for the period of its appointment.
If indicated in a prospectus supplement, the obligations of the
underwriters will be subject to conditions precedent. With respect to a sale of
securities, the underwriters will be obligated to purchase all securities
offered if any are purchased.
Chevron will indemnify any underwriters and agents against various civil
liabilities, including liabilities under the Securities Act. Underwriters and
agents may engage in transactions with or perform services for Chevron, the
subsidiary issuers and affiliated companies in the ordinary course of business.
LEGAL OPINIONS
Pillsbury Madison & Sutro LLP will pass on the legality of the securities
offered by this prospectus and any guarantees by Chevron of securities offered
by this prospectus.
EXPERTS
The consolidated financial statements of Chevron incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 1998, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting. The combined financial
statements of the Caltex Group of Companies as of December 31, 1998 and 1997,
and for each of the years in the three-year period ended December 31, 1998, have
been incorporated by reference in this Prospectus in reliance upon the report of
KPMG LLP, independent certified public accountants, incorporated by reference
herein, and upon the authority of said firm as experts in accounting and
auditing.
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<PAGE>
Part II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
All amounts reflected in the table below are estimated except the SEC
registration fee.
SEC Registration Fee $556,000
Blue Sky and Investment Eligibility Expenses 40,000
Trustee Fees and Expenses 120,000
Rating Agency Fees 330,000
Printing and Engraving 45,000
Legal Fees 125,000
Accountants' Fees 120,000
Miscellaneous 30,000
------------------
Total 1,366,000
Item 15. Indemnification of Directors and Officers
Article IX of Chevron's Restated Certificate of Incorporation provides as
follows:
"1. A director of the corporation shall not be liable to the corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (a) for any breach of the director's duty of
loyalty to the corporation or its stockholders; (b) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law; (c) pursuant to section 174 of the Corporation Law; or (d) for any
transaction from which the director derived an improper personal benefit.
2. To the fullest extent authorized by the Corporation Law, the corporation
shall indemnify any Corporate Servant who was or is a party or is threatened to
be made a party to any Proceeding by reason of the fact that such person was or
is a Corporate Servant.
3. In serving or continuing to serve the corporation, a Corporate Servant
is entitled to rely and shall be presumed to have relied on the rights granted
pursuant to the foregoing provisions of this Article IX, which shall be
enforceable as contract rights and inure to the benefit of the heirs, executors
and administrators of the Corporate Servant; and no repeal or modification of
the foregoing provisions of this Article IX shall adversely affect any right
existing at the time of such repeal or modification.
4. The Board of Directors is authorized, to the extent permitted by the
Corporation Law, to cause the corporation to pay expenses incurred by Corporate
Servants in defending Proceedings and to purchase and maintain insurance on
their behalf whether or not the corporation would have the power to indemnify
them under the provisions of this Article IX or otherwise.
5. Any right or privilege conferred by or pursuant to the provisions of
this Article IX shall not be exclusive of any other rights to which any
Corporate Servant may otherwise be entitled.
6. As used in this Article IX:
(a) 'Corporate Servant' means any natural person who is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, manager, partner, trustee,
employee or agent of another corporation, partnership, joint venture, trust or
other organization or enterprise, nonprofit or otherwise, including an employee
benefit plan;
(b) 'Corporation Law' means the General Corporation Law of the State of
Delaware, as from time to
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<PAGE>
time amended;
(c) 'indemnify' means to hold harmless against expenses (including
attorneys' fees), judgments, fines (including excise taxes assessed with respect
to an employee benefit plan) and amounts paid in settlement actually and
reasonably incurred by the Corporate Servant in connection with a Proceeding;
(d) 'Proceeding' means any threatened, pending or completed action, suit or
proceeding, whether civil, criminal or administrative; and
(e) 'request of the corporation' includes any written authorization by an
officer of the corporation."
Section 145 of the General Corporation Law of the State of Delaware, in
which Chevron is incorporated, permits, subject to certain conditions, the
indemnification of directors or officers of a Delaware corporation for expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
incurred in connection with the defense of any action, suit or proceeding in
relation to certain matters against them as such directors or officers.
The directors and officers of Chevron are covered by policies of insurance
under which they are insured, within limits and subject to limitations, against
certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, in which they are parties by reason of being or
having been directors or officers; Chevron is similarly insured with respect to
certain payments it might be required to make to its directors or officers under
the applicable statutes and Chevron's by-law provisions.
Item 16. Exhibits
1.1 Chevron Corporation Underwriting Agreement Standard
Provisions, filed June 14, 1995 as Exhibit 1.1 to Chevron's
Amendment No. 1 to Registration Statement on Form S-3
(File No. 33-58463) and incorporated herein by reference.
1.2* Chevron Capital Corporation Underwriting Agreement Standard
Provisions.
1.3* Chevron Canada Capital Company Underwriting Agreement
Standard Provisions.
3.1* Certificate of Incorporation of Chevron Capital Corporation.
3.2* By-laws of Chevron Capital Corporation.
3.3* Memorandum of Association of Chevron Canada Capital Company.
3.4* Articles of Association of Chevron Canada Capital Company.
4.1 Indenture, dated as of June 15, 1995, between Chevron and
The Chase Manhattan Bank, as successor to Chemical Bank,
as trustee, filed June 14, 1995 as Exhibit 4.1 to Chevron's
Amendment No. 1 to Form S-3 (File No. 33-58463)
and incorporated herein by reference.
4.2 First Supplemental Indenture, dated as of October 13, 1999,
between Chevron and The Chase Manhattan Bank, as trustee,
filed October 15, 1999 as Exhibit 4.1 to Chevron's
report on Form 8-K and incorporated herein by reference.
4.3* Form of Indenture among Chevron, as guarantor, Chevron
Capital Corporation and The Chase Manhattan Bank, as
trustee.
4.4* Form of Indenture among Chevron, as guarantor, Chevron
Canada Capital Company and a trustee to be named.
4.5 Forms of Securities of Chevron, filed April 6, 1995, as
Exhibit 4.2 to Chevron's Registration Statement on Form S-3
(File No. 33-58463) and incorporated herein by reference.
4.6* Forms of Securities of Chevron Capital Corporation
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<PAGE>
4.7* Forms of Securities of Chevron Canada Capital Company
5.1* Opinion of Pillsbury Madison and Sutro LLP, counsel to
Chevron.
12.1 Statement as to determination of ratio of
earnings to fixed charges filed as Exhibit 12.1
to Chevron's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1999 (File No.
1-368-2) and incorporated herein by reference.
23.1* Consent of PricewaterhouseCoopers LLP.
23.2* Consent of KPMG LLP.
23.3* Consent of Pillsbury Madison & Sutro LLP (contained in
their opinion filed as Exhibit 5.1 to this registration
statement).
24.1* Powers of Attorney for directors and certain
officers of Chevron, authorizing, among other
things, the signing of registration statements on
their behalf.
24.2* Powers of Attorney for directors and certain officers of
Chevron Capital Corporation, authorizing, among other
things, the signing of registration statements on their
behalf.
24.3* Powers of Attorney for directors and certain officers of
Chevron Canada Capital Company, authorizing, among other
things, the signing of registration statements on their
behalf.
25.1 Form T-1 Statement of Eligibility and
Qualification of The Chase Manhattan Bank under
the Trust Indenture Act of 1939, as amended,
filed as Exhibit 25.1 to Chevron's Current Report
on Form 8-K filed October 8, 1999 an incorporated
herein by reference.
25.2* Form T-1 Statement of Eligibility and Qualification of The
Chase Manhattan Bank under the Trust Indenture Act of 1939,
as amended.
* filed herewith.
Item 17. Undertakings
(a) Rule 415 Offering. The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement.
Provided, however, that paragraphs (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
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<PAGE>
Chevron pursuant to section 13 or section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) Filings Incorporating Subsequent Exchange Act Documents by
Reference. The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Chevron's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the provisions described under Item 15 above, or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the registrants of expenses incurred or paid by a director, officer or
controlling person of the registrants in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrants will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) Qualification of Trust Indentures Under the Trust Indenture Act of
1939 for Delayed Offerings. Each of the registrants hereby undertakes to file an
application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of section 310 of the Trust Indenture Act of 1939 in
accordance with the rules and regulations prescribed by the Commission under
section 305(b)(2) of the Trust Indenture Act of 1939.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Chevron
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on
November 15, 1999.
CHEVRON CORPORATION
By KENNETH T. DERR *
----------------------------------------
Kenneth T. Derr
Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 15, 1999.
Principal Executive Officers (and Directors) Directors
KENNETH T. DERR * SAMUEL H. ARMACOST *
- -------------------------------------- --------------------------------
Kenneth T. Derr, Chairman of the Board Samuel H. Armacost
JAMES N. SULLIVAN * SAM GINN *
- -------------------------------------- --------------------------------
James N. Sullivan, Vice-Chairman of the Board Sam Ginn
DAVID J. O'REILLY * CARLA A. HILLS *
- -------------------------------------- --------------------------------
David J. O'Reilly, Vice-Chairman of the Board Carla A. Hills
J. BENNETT JOHNSTON *
Principal Financial Officer --------------------------------
J. Bennett Johnston
MARTIN R. KLITTEN * RICHARD H. MATZKE *
- -------------------------------------- --------------------------------
Martin R. Klitten, Vice-President Richard H. Matzke
and Chief Financial Officer
CHARLES M. PIGOTT *
Principal Accounting Officer --------------------------------
Charles M. Pigott
STEPHEN J. CROWE * CONDOLEEZZA RICE *
- -------------------------------------- --------------------------------
Stephen J. Crowe, Comptroller Condoleezza Rice
FRANK A. SHRONTZ *
--------------------------------
Frank A. Shrontz
CHANG-LIN TIEN *
--------------------------------
Chang-Lin Tien
*By /s/ LYDIA I. BEEBE JOHN A. YOUNG *
----------------------------------- --------------------------------
Lydia I. Beebe, Attorney-in-Fact John A. Young
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Chevron Capital
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on
November 15, 1999.
CHEVRON CAPITAL CORPORATION
By GEORGE K. CARTER *
----------------------------------------
George K. Carter
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 15, 1999.
Principal Executive Officers Directors
GEORGE K. CARTER * /s/ LYDIA I. BEEBE
- -------------------------------------- --------------------------------
George K. Carter, President Lydia I. Beebe
GEORGE K. CARTER *
Principal Financial Officer --------------------------------
George K. Carter
HOWARD B. SHEPPARD * MARTIN R. KLITTEN *
- -------------------------------------- --------------------------------
Howard B. Sheppard, Vice-President Martin R. Klitten
and Treasurer
Principal Accounting Officer
JAMES A. ALEVERAS *
- --------------------------------------
James A. Aleveras, Comptroller
*By /s/ LYDIA I. BEEBE
-----------------------------------
Lydia I. Beebe, Attorney-in-Fact
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Chevron Canada
Capital Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Francisco, State of California, on November
15, 1999.
CHEVRON CANADA CAPITAL COMPANY
By JAMES W. SIMPSON *
----------------------------------------
James W. Simpson
President
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on November 15, 1999.
Principal Executive Officers Directors
JAMES W. SIMPSON * GEORGE K. CARTER *
- -------------------------------------- --------------------------------
James W. Simpson, President George K. Carter
STUART W. KINSEY *
Principal Financial Officer --------------------------------
Stuart W. Kinsey
GEORGE K. CARTER * JAMES M. OWEN *
- -------------------------------------- --------------------------------
George K. Carter, Vice-President James M. Owen
and Treasurer
RICHARD A. PASHELKA *
Principal Accounting Officer --------------------------------
Richard A. Pashelka
JAMES A. ALEVERAS * JAMES W. SIMPSON *
- -------------------------------------- --------------------------------
James A. Aleveras, Comptroller James W. Simpson
*By /s/ LYDIA I. BEEBE
-----------------------------------
Lydia I. Beebe, Attorney-in-Fact
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<PAGE>
EXHIBIT 1.2
CHEVRON CAPITAL CORPORATION
Guaranteed Debt Securities
------------
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
<PAGE>
CHEVRON CAPITAL CORPORATION
Guaranteed Debt Securities
-----------
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Chevron Capital Corporation, a Delaware
corporation (the "Company"), may enter into one or more underwriting agreements
that provide for the sale of certain debt securities (the "Securities")
guaranteed by Chevron Corporation, a Delaware corporation ("Chevron"), to the
purchaser or purchasers named therein (each an "Underwriter" and collectively,
the "Underwriters"). The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (the "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined.
The terms and rights of any particular issue of Securities and
the terms of issuance and sale thereof shall be as provided in the Indenture
(the "Indenture") dated as of ______ 1999 among the Company, Chevron and The
Chase Manhattan Bank, as Trustee (the "Trustee") and in the applicable
Underwriting Agreement (with respect to each Underwriting Agreement, the
"Designated Securities") .
Section 1. Issuance of Designated Securities. Sales of the
Designated Securities may be made from time to time to the Underwriters of the
Designated Securities. The firm or firms designated as the representative or
representatives, as the case may be, of the Underwriters of the Designated
Securities in the Underwriting Agreement relating thereto will act as the
representative or representatives (the "Representative"). The obligation of the
Company to issue and sell any of the Designated Securities, the obligation of
Chevron to guarantee any of the Designated Securities and the obligation of any
Underwriter to purchase any of the Designated Securities shall be evidenced by
the Underwriting Agreement with respect to the Designated Securities specified
therein. Each Underwriting Agreement shall specify the aggregate principal
amount of the Designated Securities, the public offering price of the Designated
Securities, the purchase price to the Underwriter or Underwriters of the
Designated Securities, the names of the Underwriter or Underwriters of the
Designated Securities, the name of the Representative, if any, of such
Underwriters, the principal amount of the Designated Securities to be purchased
by each Underwriter and the terms of any Delayed Delivery Contract (each as
hereinafter defined), and shall set forth the date, time and manner of delivery
of the Designated Securities and payment therefor. The Underwriting Agreement
shall also specify (to the extent not set forth in the Registration Statement
and Prospectus (as hereinafter defined) with respect thereto) the general terms
of the Designated Securities. An Underwriting Agreement shall be in writing
(which may be in counterparts), and may be evidenced by an exchange of facsimile
transmissions or any other transmission device designed to produce a written
record of communications transmitted. The obligations of the Underwriters under
each Underwriting Agreement shall be several and not joint.
If the Company and Chevron agree, the Underwriter or Underwriters
may solicit offers to purchase the Designated Securities pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") in a form agreed upon by the
Company and Chevron. The Underwriter or Underwriters shall be paid their
specified commission for Delayed Delivery Contracts upon the full performance
of the Delayed Delivery Contracts. If the Delayed Delivery Contracts are
invalid or are not fully performed, then the Underwriter or Underwriters
shall not be entitled to any compensation for their efforts in securing such
Delayed Delivery Contracts.
<PAGE>
If the Delayed Delivery Contracts are executed, valid and
fully performed, the Designated Securities delivered pursuant to them shall be
deducted from the Designated Securities to be purchased by the Underwriter or
Underwriters and the aggregate principal amount of Designated Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Designated Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the Representative
determines that such reduction shall be otherwise than in such proportion and so
advise the Company and Chevron in writing; provided, however, that the total
principal amount of securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule I thereto, less the aggregate
principal amount of Designated Securities to be delivered pursuant to the
delayed delivery provisions.
Section 2. Representations and Warranties. The Company and Chevron
represent and warrant to, and agree with, each Underwriter that:
(a) A registration statement on Form S-3 (Registration No.
333-______ ), including a prospectus, relating to the Securities of the
Company has been filed with the Securities and Exchange Commission (the
"Commission") in accordance with applicable regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
and has become effective under the Act. Such registration statement, as
amended to the date of this Agreement, is hereinafter referred to as
the "Registration Statement," and such prospectus as proposed to be
supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Designated Securities to be filed pursuant to Rule 424
under the Act is hereinafter referred to as the "Prospectus." Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement, and incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, excluding any documents or
portions of such documents which are deemed under the rules and
regulations of the Commission under the Act not to be incorporated by
reference; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement.
(b) The Registration Statement and the Prospectus conform, and
any amendments thereof and supplements thereto relating to the
Designated Securities will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as
to form with the Exchange Act and the rules and regulations thereunder,
the Indenture conforms in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
and the rules and regulations of the Commission thereunder, and none of
the above listed documents included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company
and Chevron make no representations and warranties as to (i) that part
of the Registration Statement which shall constitute the Trustee's
Statement of Eligibility and Qualifications (Form T-1) under the Trust
Indenture Act or (ii) any statements or omissions made in reliance upon
and in conformity with information furnished to the Company or Chevron
by or on behalf of any Underwriter for use in connection with the
preparation of such documents.
Section 3. Delivery and Payment. Delivery of and payment for
the Designated Securities (except for Designated Securities to be delivered
under Delayed Delivery Contracts) shall be made at the place, on the date and at
the time specified in the Underwriting Agreement (the "Closing Date"), which
Closing Date may be postponed by agreement between the Underwriter or the
Representative acting on behalf of the Underwriters, the Company and Chevron.
Delivery of the Designated Securities shall be made to the Underwriter or to the
Representative for the respective accounts of the Underwriters against payment
by the
<PAGE>
Underwriters directly or through the Representative of the purchase price
thereof to or upon the order of the Company by either wire transfer of
immediately available funds or by certified or official bank check or checks
payable in New York Clearing House funds, as may be agreed among the Company,
Chevron and the Underwriter or the Representative.
The Company agrees to have the Designated Securities available
for inspection, checking and packaging in New York, New York, at least one
business day prior to the Closing Date.
Section 4. Offering by Underwriter or Underwriters. It is
understood that the Underwriter or Underwriters propose to offer the Designated
Securities for sale to the public upon the terms and conditions set forth in the
Prospectus.
Section 5. Agreements. The Company and Chevron agree with the
Underwriter or Underwriters that:
(a) The Company and Chevron will cause the Prospectus Supplement to
be filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriter or the Representative when the Prospectus Supplement has been so
filed, and prior to the termination of the offering of the Designated
Securities will promptly advise the Underwriter or the Representative (i) when
any amendment to the Registration Statement has become effective or any further
supplement to the Prospectus has been filed, (ii) of any request by the
Commission for any amendment of the Registration Statement or the Prospectus or
for any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company or Chevron of any notification with respect to the
suspension of the qualification of the Designated Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company and Chevron will use their best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof. The Company and Chevron will not file any amendment to
the Registration Statement or supplement to the Prospectus relating to the
Designated Securities unless they have furnished the Underwriter or the
Representative a copy prior to filing and will not file any such proposed
amendment or supplement to which the Underwriter or the Representative
reasonably objects.
(b) If, at any time when a prospectus relating to the Designated
Securities is required to be delivered under the Act or any other applicable
securities law, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder, the
Company and Chevron will promptly notify the Underwriter or Representative and
will promptly prepare and file with the Commission, subject to paragraph (a) of
this Section 5, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) Chevron will make generally available to its security holders and
to the Underwriter or the Representative as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of the
fiscal quarter of Chevron during which the filing of the Prospectus Supplement
pursuant to Rule 424 under the Act first occurs (except not later than 90 days
if such filing date is in the last fiscal quarter), an earnings statement
(which need not be audited) of Chevron and its subsidiaries, covering such
12-month period, which will satisfy the provisions of Section 11(a) of the Act.
(d) The Company and Chevron will furnish to the (i) Underwriter or
the Representative and (ii) counsel for the Underwriters copies of the
Registration Statement (including, if requested, the exhibits thereto and
the documents incorporated by reference in the Prospectus) and each amendment or
supplement thereto relating to the Designated Securities which is thereafter
filed pursuant to paragraph (a) or (b) of this Section 5 and to each other
Underwriter other than the Representative, so long as delivery of a prospectus
by an Underwriter or dealer may be required by the Act or other applicable
securities laws, as many copies
<PAGE>
of the Prospectus and any amendments thereof and supplements thereto, relating
to the Designated Securities, as such Underwriter or Representative may
reasonably request.
(e) The Company and Chevron will pay (i) all expenses incurred
by them in the performance of their obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for preparing a
Blue Sky and Legal Investment Memorandum with respect to the sale of the
Designated Securities, and (iii) the expenses of printing and delivering the
Designated Securities, the documents specified in paragraph (d) of this Section
5 and any Blue Sky and Legal Investment Memorandum.
(f) The Company and Chevron will use their best efforts to
arrange and pay for the qualification of the Designated Securities for sale
under the laws of such jurisdictions as the Underwriter or the Representative
may designate and to maintain such qualifications in effect so long as required
for the distribution of the Designated Securities; provided, however, that the
Company and Chevron shall not be required to qualify to do business in any
jurisdiction where they are not now qualified or to take any action which would
subject them to general or unlimited service of process in any jurisdiction
where they are not now so subject.
(g) If the sale of the Designated Securities provided for in
an Underwriting Agreement is not consummated by reason of any failure, refusal
or inability on the part of the Company or Chevron to perform any agreement on
its part to be performed (except for any failure so to perform on the part of
the Company or Chevron engendered by a failure, refusal or inability on the part
of the Underwriter or Underwriters to perform any agreement on their part to be
performed) or the failure of any condition set forth in Section 6, the Company
or Chevron will reimburse the several Underwriters who are named in such
Underwriting Agreement for all reasonable out-of-pocket disbursements incurred
by the Underwriters in connection with their investigation, marketing and
preparing to market the Designated Securities, and upon such reimbursement the
Company and Chevron shall have no further liability to the Underwriters except
as provided in Section 7.
(h) During the period beginning on the date of this Agreement
and terminating on the earlier of (i) the Closing Date or (ii) the date of
notice to the Company by the Underwriter or the Representative of the
termination of trading restrictions, if any, with respect to the Designated
Securities imposed by any Agreement among Underwriters, neither the Company nor
Chevron will offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the Designated Securities
covered by this Agreement, without the prior written consent of the Underwriter
or the Representative.
The Underwriter or Underwriters agree with Chevron and the
Company that if a letter delivered to the Underwriter or to the Representative
pursuant to paragraph (e) of Section 6 of this Agreement has attached thereto a
copy of unaudited interim financial statements for a period ending after the
latest financial statements included in the Registration Statement, and if such
financial statements have not been publicly disclosed, such Representative or
Underwriter shall keep such attachment in strict confidence and not furnish such
attachment to the other Underwriters or to any other person; provided, however,
that if an action of the kind referred to in paragraph (a) of Section 7 of this
Agreement is commenced against any person who may be entitled to indemnification
or contribution under such section, the Representative may furnish a copy of
such attachment to each of the other Underwriters.
Section 6. Conditions to the Obligations of the Underwriter or
Underwriters. The obligations of the Underwriter or Underwriters to purchase the
Designated Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company and Chevron contained herein as of the
date hereof and the Closing Date, to the performance by the Company and Chevron
of their obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened as
of the Closing Date;
<PAGE>
(b) Pillsbury Madison & Sutro LLP, counsel for the Company and
Chevron, shall have furnished to the Underwriter or the Representative
their opinion, dated the Closing Date, substantially in the form
attached hereto as Exhibit A;
(c) The Underwriter or the Representative shall have received
from counsel for the Underwriters such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriter or the
Representative may reasonably require;
(d) The Company and Chevron shall have furnished to the
Underwriter or the Representative a certificate, dated the Closing
Date, of the Company and Chevron, signed by one or more officers of the
Company and Chevron, to the effect that the signer or signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(1) The representations and warranties of the Company
and Chevron in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Company and
Chevron have complied with all the agreements and satisfied
all the conditions on their part to be performed or satisfied
at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to their
knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or
otherwise) of Chevron and its consolidated subsidiaries, taken
as a whole, nor any material increase in the debt of Chevron
Corporation and its consolidated subsidiaries, except as set
forth in or contemplated by the Prospectus or as described in
the certificate.
(e) The Underwriter or the Representative shall have received
from PricewaterhouseCoopers LLP a letter, dated the Closing Date, which
letter shall be in form as may be agreed upon among the Underwriter or
the Representative, Chevron and Price Waterhouse, and shall cover such
matters as may be reasonably requested by the Underwriter or the
Representative.
(f) Prior to the Closing Date, the Company and Chevron shall
have furnished to the Underwriter or the Representative such further
information, certificates and documents as it may reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change,
in or affecting the business or properties of Chevron and its
subsidiaries considered as a whole which the Underwriter or the
Representative concludes, in its judgment, after consultation with
Chevron, materially impairs the investment quality of the Designated
Securities so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Designated Securities as
contemplated by the Prospectus.
Section 7. Indemnification and Contribution.
<PAGE>
(a) The Company and Chevron agree to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
any amendment thereof or supplement thereto relating to the Designated
Securities, 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 agree to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them,
as so incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and
Chevron will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information furnished to the
Company or Chevron in writing by an Underwriter or on behalf of any Underwriter
through the Representative for use in connection with the preparation thereof.
This indemnity agreement will be in addition to any liability which the Company
or Chevron may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company and Chevron, each of their directors, each of their
officers who signs the Registration Statement, and each person who controls the
Company or Chevron within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and Chevron to each
Underwriter, but only with reference to information furnished to the Company or
Chevron in writing by an Underwriter or on behalf of such Underwriter through
the Representative for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by
<PAGE>
a court to be unavailable from the Company, Chevron or the Underwriter or
Underwriters on grounds of policy or otherwise, the Company, Chevron and the
Underwriter or Underwriters shall contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) to which the Company,
Chevron or one or more of the Underwriters may be subject in such proportion so
that the Underwriters are responsible for that portion represented by the
percentage that the underwriting discount appearing on the cover page of the
Prospectus bears to the public offering price appearing thereon and Chevron
and the Company are responsible for the balance; provided that (y) in no case
shall any Underwriter (except as may be provided in any agreement among
underwriters relating to the offering of the Designated Securities) be
responsible for any amount in excess of the underwriting discount applicable
to the Designated Securities purchased by such Underwriter hereunder and (z) 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. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person who controls the Company or Chevron within the
meaning of either the Act or the Exchange Act, each officer of the Company or
Chevron who shall have signed the Registration Statement and each director of
the Company or Chevron shall have the same rights to contribution as the
Company and Chevron, subject in each case to clause (y) of this paragraph (d).
Any party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify in writing such party or parties
shall not relieve the party or parties from whom contribution may be sought
from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
Section 8. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriter or the Representative,
by written notice given to the Company and Chevron prior to delivery of and
payment for the Designated Securities, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriter or the Representative, impracticable to market the
Designated Securities.
Section 9. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company and Chevron, or their officers and of the Underwriter
or Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, the Company, Chevron, or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 5(e) and 7 hereof
shall survive the termination or cancellation of this Agreement.
Section 10. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any Designated Securities agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Designated Securities set forth opposite their names in Schedule I of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in Schedule I of the Underwriting Agreement, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Designated Securities, and if such
non-defaulting Underwriters do not purchase all the Designated Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter,
the Company or Chevron. In the event of a default by any Underwriter as set
forth in this Section 10, the Closing
<PAGE>
Date shall be postponed for such period, not exceeding seven days, as the
Underwriter or the Representative shall determine in order that the required
changes in the Registration Statement and the Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to the
Company or Chevron and any non-defaulting Underwriter for damages occasioned by
its default hereunder.
Section 11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
Section 12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO OPINION]
[Date]
Underwriter(s)
Gentlemen and Mesdames:
We have acted as counsel to Chevron Corporation ("Chevron")
and Chevron Capital Corporation (the "Company") in connection with your purchase
from The Company of $000,000,000 in aggregate principal amount of its Guaranteed
Securities Due 0000 (the "Securities"). Such purchase is made pursuant to the
Underwriting Agreement dated _______________, 19_ (the "Underwriting Agreement")
among The Company, Chevron and you, the Underwriter[s]. The Securities are
being issued under an Indenture dated as of ________________, 199_ (the
"Indenture") among the Company, as issuer, Chevron, as guarantor, and The Chase
Manhattan Bank, as Trustee (the "Trustee"). This opinion is furnished pursuant
to Section 6(b) of the Underwriting Agreement. Terms defined in the Indenture
have the same meanings when used in this opinion.
We have examined executed copies of the Indenture, the
Securities, the Underwriting Agreement, the Registration Statement (as
hereinafter defined) and the Prospectus (as hereinafter defined). We have also
examined such other documents and certificates of public officials and
representatives of Chevron and The Company as we have deemed necessary as a
basis for the opinions expressed herein. As to questions of fact material to
such opinions, we have, when relevant facts were not independently established,
relied upon certificates of officers or authorized representatives of Chevron
and The Company.
We have assumed the genuineness of all signatures and
documents submitted to us as originals, that all copies submitted to us conform
to the originals, the legal capacity of all natural persons, and as to documents
executed by entities other than Chevron or The Company, that each of such
entities has the power to enter into and perform its respective obligations
thereunder, and that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, each of such
entities.
We express no opinion as to the laws of any jurisdiction other
than California, New York and the general corporate law of Delaware and the
Federal laws of the United States of America.
Based upon the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. Chevron is validly existing and in good standing under the
laws of the State of Delaware and is duly qualified and in good standing to do
business in each other state in which its ownership or leasing of properties
requires such qualification and in which a consequence of the failure to be so
qualified would be materially adverse to the business or financial condition of
Chevron and its subsidiaries taken as a whole and possess the requisite
corporate power and authority to own its properties and conduct its
<PAGE>
businesses consistent with any description thereof in the prospectus dated
___________________ and the prospectus supplement dated ___________________,
filed with the Securities and Exchange Commission (the "Commission") pursuant
to Rule 424(b)(2) of Regulation C under the Securities Act of 1933, as amended
(the "Act") (the prospectus and the prospectus supplement, including the
documents incorporated by reference therein, are herein collectively referred
to as the "Prospectus").
2. The Company is duly organized and validly existing under the
laws of the State of Delaware.
3. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized, executed and
delivered by Chevron and the Company and constitutes the valid and binding
obligation of Chevron and the Company enforceable against each in accordance
with its terms.
4. The Securities have been duly authorized, executed and
delivered by the Company and constitute valid and binding obligations of the
Company, enforceable in accordance with their respective terms.
5. The Securities will be entitled to the benefits of the
Indenture, including the Guarantee set forth in Article Four of the Indenture,
and such Guarantee constitutes the valid and binding obligation of Chevron
enforceable in accordance with its terms.
6. The Underwriting Agreement has been duly authorized,
executed and delivered by Chevron and the Company.
7. The Registration Statement of Form S-3 (File No. ________________)
filed by the Company and Chevron with the Commission under Rule 415 of the Act
on ____________________ (such Registration Statement including the documents
incorporated by reference therein being herein collectively referred to as the
"Registration Statement") has become effective under the Act, and, to the best
of our knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been instituted or are pending or contemplated under the Act, and, except
as may be otherwise indicated in the Prospectus or required by the blue sky or
securities laws of jurisdictions in which the Securities are offered or sold,
no further authorization, consent, approval of or filing with any governmental
or regulatory body, Federal or state, is required to be obtained by the Company
or Chevron in connection with the execution, delivery and performance of the
terms of the Underwriting Agreement, the Indenture or the Securities or the
offer and sale of the Securities as described in the Prospectus, and the
execution, delivery and performance of the terms of the Underwriting Agreement,
the Indenture and the Securities by Chevron or the Company will not contravene
any provision of the Restated Certificate of Incorporation, as amended, or
By-Laws of Chevron, the ___________________ of the Company, any Federal law or
regulation or, to the best of our knowledge, any applicable state law or any
material agreement or instrument binding upon Chevron.
8. The Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed by Chevron under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied as to form in all material
respects when so filed with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; the statements in the Prospectus
with respect to the terms of the Indenture and the Securities fairly summarize
the terms of such instruments and to the best of our knowledge there are no
other agreements or instruments required to be described or referred to in the
Registration Statement which have not been described or referred to therein; and
while we have not ourselves checked the accuracy or completeness of, or
otherwise verified the information furnished in the Registration Statement, we
have considered the information required to be furnished therein and have
generally reviewed and had discussions with certain officers and employees of
Chevron concerning the information so furnished, whether or not subject to our
checking and verification, and on the basis of such consideration, review and
discussions, but without independent checking or verification, we have no reason
to believe that the Registration Statement or the Prospectus, as of [Date of
Sale], contained any untrue statement of a material fact or omitted to state any
material fact required to be
<PAGE>
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading or that the Registration
Statement or the Prospectus, as of [Close Date], contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; it being understood that
with respect to the matters covered by this paragraph 8, we express no opinion
as to the financial statements or other financial or numerical data contained
in the Registration Statement or the Prospectus.
The opinions set forth in the foregoing are subject to the
following qualifications:
(a) Our opinions in paragraphs 3, 4 and 5 are subject to and
limited by: (i) the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally; (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
proceeding in equity or at law; (iii) to the extent applicable, the effect of
court decisions invoking statutes or principles of equity, which have held that
certain covenants and provisions of agreements are unenforceable where the
breach of such covenants or provisions imposes restrictions or burdens upon a
borrower, and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the creditor, or
which have held that the creditor's enforcement of such covenants or provisions
under the circumstances would have violated the creditor's covenants of good
faith and fair dealing implied under California law, and (iv) to the extent
applicable, the effect of California statutes and rules of law which cannot be
waived prospectively by a borrower. With respect to the Guarantee set forth in
the Indenture, we note that certain California statutes and cases provide that a
surety may be exonerated if the creditor alters the original obligation of the
principal without the surety's consent, elects remedies for default that may
impair the surety's subrogation rights against the principal, or otherwise takes
action which materially prejudices the surety, without notification of the
surety and opportunity on the part of the surety to cure, unless such rights of
the surety are validly waived. California courts have generally upheld the
waivers of such rights as are contained in the Guarantee under California law;
however, we express no opinion with respect to the effect under California law
(other than California choice of law rules) of any modification of the
obligations of the Company which materially increases such obligations, or any
election of remedies by the Trustee or the holders of the Securities following
the occurrence of a default, or any other action by the Trustee or the holders
of the Securities which materially prejudices Chevron, as guarantor, if such
action occurs without notice and opportunity to cure being granted to Chevron,
as guarantor. However, in our opinion (x) acceleration of the maturity of the
Securities would be available if an Event of Default occurs as a result of
non-payment by Chevron of principal of or interest or any premium on the
Securities or as a result of a material breach by Chevron of a covenant
contained in the Indenture, (y) failure to enforce any such covenant will not
render the Indenture or the Guarantee invalid as a whole and (z) there exists in
the Indenture or pursuant to applicable law legally adequate remedies for a
realization of the principal benefits intended to be provided by the Indenture
or the Guarantee. Notwithstanding the foregoing, we have been advised by
[Cleary, Gottlieb, Steen & Hamilton], upon which advice we rely, that the
waivers and consents in the Guarantee are enforceable under New York law. While
there is no decision of the California Supreme Court directly on point, it is
our opinion that the provisions of Section 14.06 of the Indenture selecting New
York law as the governing law would be honored by a California court applying
California choice of law principles.
(b) Whenever a statement herein is qualified by "known to us",
"to our knowledge" or similar phrase, it indicates that in the course of our
representation of Chevron no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction, including the principal partners of this firm who are familiar with
matters relating to the Company. We have not made any independent investigation
to determine the accuracy of such statement, except as expressly described
herein. No inference as to our knowledge of any matters bearing on the accuracy
of such statement should be drawn from the fact of our representation of Chevron
and the Company in other matters in which such attorneys are not involved.
<PAGE>
This opinion is rendered by us as counsel for Chevron and the
Company solely for your benefit in connection with the transaction referred to
herein and may not be relied upon by you in connection with any other
transaction and may not be relied upon by any other person without our prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT 1.3
CHEVRON CANADA CAPITAL COMPANY
Guaranteed Debt Securities
------------
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
<PAGE>
CHEVRON CANADA CAPITAL COMPANY
Guaranteed Debt Securities
-----------
UNDERWRITING AGREEMENT STANDARD PROVISIONS
From time to time, Chevron Canada Capital Company, an unlimited
liability corporation organized under the laws of Nova Scotia, Canada (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of certain debt securities (the "Securities") guaranteed by Chevron
Corporation, a Delaware corporation ("Chevron"), to the purchaser or purchasers
named therein (each an "Underwriter" and collectively, the "Underwriters"). The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (the "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
The terms and rights of any particular issue of Securities and the
terms of issuance and sale thereof shall be as provided in the Indenture (the
"Indenture") dated as of ______ 1999 among the Company, Chevron and
_________________, as Trustee (the "Trustee") and in the applicable Underwriting
Agreement (with respect to each Underwriting Agreement, the "Designated
Securities").
Section 1. Issuance of Designated Securities. Sales of the
Designated Securities may be made from time to time to the Underwriter or
Underwriters of the Designated Securities. The firm or firms designated as the
representative or representatives, as the case may be, of the Underwriters of
the Designated Securities in the Underwriting Agreement relating thereto will
act as the representative or representatives (the "Representative"). The
obligation of the Company to issue and sell any of the Designated Securities,
the obligation of Chevron to guarantee any of the Designated Securities and the
obligation of any Underwriter or Underwriters to purchase any of the Designated
Securities shall be evidenced by the Underwriting Agreement with respect to the
Designated Securities specified therein. Each Underwriting Agreement shall
specify the aggregate principal amount of the Designated Securities, the public
offering price of the Designated Securities, the purchase price to the
Underwriter or Underwriters of the Designated Securities, the names of the
Underwriter or Underwriters of the Designated Securities, the name of the
Representative, if any, of such Underwriters, the principal amount of the
Designated Securities to be purchased by each Underwriter and the terms of any
Delayed Delivery Contract (as hereinafter defined), and shall set forth the
date, time and manner of delivery of the Designated Securities and payment
therefor. The Underwriting Agreement shall also specify (to the extent not set
forth in the Registration Statement and Prospectus (each as hereinafter defined)
with respect thereto) the general terms of the Designated Securities. An
Underwriting Agreement shall be in writing (which may be in counterparts), and
may be evidenced by an exchange of facsimile transmissions or any other
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under each Underwriting
Agreement shall be several and not joint.
If the Company and Chevron agree, the Underwriter or Underwriters
may solicit offers to purchase the Designated Securities pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") in a form agreed upon by the
Company and Chevron. The Underwriter or Underwriters shall be paid their
specified commission for Delayed Delivery Contracts upon the full performance
of the Delayed Delivery Contracts. If the Delayed Delivery Contracts are
invalid or are not fully performed, then the Underwriter or Underwriters
shall not be entitled to any compensation for their efforts in securing such
Delayed Delivery Contracts.
<PAGE>
If the Delayed Delivery Contracts are executed, valid and fully
performed, the Designated Securities delivered pursuant to them shall be
deducted from the Designated Securities to be purchased by the Underwriter or
Underwriters and the aggregate principal amount of Designated Securities to be
purchased by each Underwriter shall be reduced pro rata in proportion to the
principal amount of Designated Securities set forth opposite each Underwriter's
name in the Underwriting Agreement, except to the extent that the Representative
determines that such reduction shall be otherwise than in such proportion and so
advise the Company and Chevron in writing; provided, however, that the total
principal amount of securities to be purchased by all Underwriters shall be the
aggregate principal amount set forth in Schedule I thereto, less the aggregate
principal amount of Designated Securities to be delivered pursuant to the
delayed delivery provisions.
Section 2. Representations and Warranties. The Company and Chevron
represent and warrant to, and agree with, each Underwriter that:
(a) A registration statement on Form S-3 (Registration No.
333-______ ), including a prospectus, relating to the Securities of the
Company has been filed with the Securities and Exchange Commission (the
"Commission") in accordance with applicable regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
and has become effective under the Act. Such registration statement, as
amended to the date of this Agreement, is hereinafter referred to as
the "Registration Statement," and such prospectus as proposed to be
supplemented by a prospectus supplement (the "Prospectus Supplement")
relating to the Designated Securities to be filed pursuant to Rule 424
under the Act is hereinafter referred to as the "Prospectus." Any
reference herein to the Registration Statement or the Prospectus shall
be deemed to refer to and include the documents which were filed under
the Securities Exchange Act of 1934 (the "Exchange Act") on or before
the date of this Agreement, and incorporated by reference in the
Prospectus pursuant to Item 12 of Form S-3, excluding any documents or
portions of such documents which are deemed under the rules and
regulations of the Commission under the Act not to be incorporated by
reference; and any reference herein to the terms "amend," "amendment"
or "supplement" with respect to the Registration Statement or the
Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act deemed to be incorporated therein by
reference after the date of this Agreement.
(b) The Registration Statement and the Prospectus conform, and
any amendments thereof and supplements thereto relating to the
Designated Securities will conform, in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied when so filed as
to form with the Exchange Act and the rules and regulations thereunder,
the Indenture conforms in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act")
and the rules and regulations of the Commission thereunder, and none of
the above listed documents included or will include any untrue
statement of a material fact or omitted or will omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company
and Chevron make no representations and warranties as to (i) that part
of the Registration Statement which shall constitute the Trustee's
Statement of Eligibility and Qualifications (Form T-1) under the Trust
Indenture Act or (ii) any statements or omissions made in reliance upon
and in conformity with information furnished to the Company or Chevron
by or on behalf of any Underwriter for use in connection with the
preparation of such documents.
Section 3. Delivery and Payment. Delivery of and payment for the
Designated Securities (except for Designated Securities to be delivered under
Delayed Delivery Contracts) shall be made at the place, on the date and at the
time specified in the Underwriting Agreement (the "Closing Date"), which Closing
Date may be postponed by agreement between the Underwriter or the
Representative acting on behalf of the Underwriters, the Company and Chevron.
Delivery of the Designated Securities shall be made to the Underwriter or to the
Representative for the respective accounts of the Underwriters against payment
by the
<PAGE>
Underwriters directly or through the Representative of the purchase price
thereof to or upon the order of the Company by either wire transfer of
immediately available funds or by certified or official bank check or checks
payable in New York Clearing House funds, as may be agreed among the Company,
Chevron and the Underwriter or the Representative.
The Company agrees to have the Designated Securities available
for inspection, checking and packaging in New York, New York, at least one
business day prior to the Closing Date.
Section 4. Offering by Underwriter or Underwriters. It is understood
that the Underwriter or Underwriters propose to offer the Designated
Securities for sale to the public upon the terms and conditions set forth in the
Prospectus.
Section 5. Agreements. The Company and Chevron agree with the
Underwriter or Underwriters that:
(a) The Company and Chevron will cause the Prospectus Supplement to
be filed pursuant to Rule 424 under the Act and will promptly advise the
Underwriter or the Representative when the Prospectus Supplement has been so
filed, and prior to the termination of the offering of the Designated
Securities will promptly advise the Underwriter or the Representative (i) when
any amendment to the Registration Statement has become effective or any further
supplement to the Prospectus has been filed, (ii) of any request by the
Commission for any amendment of the Registration Statement or the Prospectus or
for any additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (iv) of the
receipt by the Company or Chevron of any notification with respect to the
suspension of the qualification of the Designated Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company and Chevron will use their best efforts to prevent the
issuance of any such stop order and, if issued, to obtain as soon as possible
the withdrawal thereof. The Company and Chevron will not file any amendment to
the Registration Statement or supplement to the Prospectus relating to the
Designated Securities unless they have furnished the Underwriter or the
Representative a copy prior to filing and will not file any such proposed
amendment or supplement to which the Underwriter or the Representative
reasonably objects.
(b) If, at any time when a prospectus relating to the Designated
Securities is required to be delivered under the Act or any other applicable
securities law, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend or supplement the Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder, the
Company and Chevron will promptly notify the Underwriter or Representative and
will promptly prepare and file with the Commission, subject to paragraph (a) of
this Section 5, an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance.
(c) Chevron will make generally available to its security holders
and to the Underwriter or the Representative as soon as practicable, but
not later than 45 days after the end of the 12-month period beginning at the end
of the fiscal quarter of Chevron during which the filing of the Prospectus
Supplement pursuant to Rule 424 under the Act first occurs (except not later
than 90 days if such filing date is in the last fiscal quarter), an earnings
statement (which need not be audited) of Chevron and its subsidiaries, covering
such 12-month period, which will satisfy the provisions of Section 11(a) of the
Act.
(d) The Company and Chevron will furnish to the (i) Underwriter or
the Representative and (ii) counsel for the Underwriter or Underwriters copies
of the Registration Statement (including, if requested, the exhibits thereto
and the documents incorporated by reference in the Prospectus) and each
amendment or supplement thereto relating to the Designated Securities which is
thereafter filed pursuant to paragraph (a) or (b) of this Section 5 and to
each other Underwriter other than the Representative, so long as delivery of
a prospectus by an Underwriter or dealer may be required by the Act or other
applicable
<PAGE>
securities laws, as many copies of the Prospectus and any amendments thereof
and supplements thereto, relating to the Designated Securities, as such
Underwriter or Representative may reasonably request.
(e) The Company and Chevron will pay (i) all expenses incurred
by them in the performance of their obligations under this Agreement, (ii)
reasonable fees charged for rating the Designated Securities and for preparing a
Blue Sky and Legal Investment Memorandum with respect to the sale of the
Designated Securities, and (iii) the expenses of printing and delivering the
Designated Securities, the documents specified in paragraph (d) of this Section
5 and any Blue Sky and Legal Investment Memorandum.
(f) The Company and Chevron will use their best efforts to arrange
and pay for the qualification of the Designated Securities for sale under the
laws of such jurisdictions as the Underwriter or the Representative may
designate and to maintain such qualifications in effect so long as required
for the distribution of the Designated Securities; provided, however, that the
Company and Chevron shall not be required to qualify to do business in any
jurisdiction where they are not now qualified or to take any action which would
subject them to general or unlimited service of process in any jurisdiction
where they are not now so subject.
(g) If the sale of the Designated Securities provided for in an
Underwriting Agreement is not consummated by reason of any failure, refusal
or inability on the part of the Company or Chevron to perform any agreement on
its part to be performed (except for any failure so to perform on the part of
the Company or Chevron engendered by a failure, refusal or inability on the part
of the Underwriter or Underwriters to perform any agreement on their part to be
performed) or the failure of any condition set forth in Section 6, the Company
or Chevron will reimburse the several Underwriters who are named in such
Underwriting Agreement for all reasonable out-of-pocket disbursements incurred
by the Underwriters in connection with their investigation, marketing and
preparing to market the Designated Securities, and upon such reimbursement the
Company and Chevron shall have no further liability to the Underwriters except
as provided in Section 7.
(h) During the period beginning on the date of this Agreement
and terminating on the earlier of (i) the Closing Date or (ii) the date of
notice to the Company by the Underwriter or the Representative of the
termination of trading restrictions, if any, with respect to the Designated
Securities imposed by any Agreement among Underwriters, neither the Company nor
Chevron will offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the Designated Securities
covered by this Agreement, without the prior written consent of the Underwriter
or the Representative.
The Underwriter or Underwriters agree with Chevron and the Company
that if a letter delivered to the Underwriter or to the Representative
pursuant to paragraph (e) of Section 6 of this Agreement has attached thereto a
copy of unaudited interim financial statements for a period ending after the
latest financial statements included in the Registration Statement, and if such
financial statements have not been publicly disclosed, such Representative or
Underwriter shall keep such attachment in strict confidence and not furnish such
attachment to the other Underwriters or to any other person; provided, however,
that if an action of the kind referred to in paragraph (a) of Section 7 of this
Agreement is commenced against any person who may be entitled to indemnification
or contribution under such section, the Representative may furnish a copy of
such attachment to each of the other Underwriters.
Section 6. Conditions to the Obligations of the Underwriter or
Underwriters. The obligations of the Underwriter or Underwriters to purchase the
Designated Securities shall be subject to the accuracy of the representations
and warranties on the part of the Company and Chevron contained herein as of the
date hereof and the Closing Date, to the performance by the Company and Chevron
of their obligations hereunder and to the following additional conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted and be pending or threatened as
of the Closing Date;
<PAGE>
(b) Pillsbury Madison & Sutro LLP, counsel for the Company and
Chevron, shall have furnished to the Underwriter or the Representative
their opinion, dated the Closing Date, substantially in the form
attached hereto as Exhibit A;
(c) The Underwriter or the Representative shall have received
from counsel for the Underwriters such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriter or the
Representative may reasonably require;
(d) The Company and Chevron shall have furnished to the
Underwriter or the Representative a certificate, dated the Closing
Date, of the Company and Chevron, signed by one or more officers of the
Company and Chevron, to the effect that the signer or signers of such
certificate have carefully examined the Registration Statement, the
Prospectus and this Agreement and that:
(1) The representations and warranties of the Company
and Chevron in this Agreement are true and correct in all
material respects on and as of the Closing Date with the same
effect as if made on the Closing Date, and the Company and
Chevron have complied with all the agreements and satisfied
all the conditions on their part to be performed or satisfied
at or prior to the Closing Date;
(2) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to their
knowledge, threatened as of such date; and
(3) Since the date of the most recent financial
statements included in the Prospectus, there has been no
material adverse change in the condition (financial or
otherwise) of Chevron and its consolidated subsidiaries, taken
as a whole, nor any material increase in the debt of Chevron
Corporation and its consolidated subsidiaries, except as set
forth in or contemplated by the Prospectus or as described in
the certificate.
(e) The Underwriter or the Representative shall have received
from PricewaterhouseCoopers LLP a letter, dated the Closing Date, which
letter shall be in form as may be agreed upon among the Underwriter or
the Representative, Chevron and Price Waterhouse, and shall cover such
matters as may be reasonably requested by the Underwriter or the
Representative.
(f) Prior to the Closing Date, the Company and Chevron shall
have furnished to the Underwriter or the Representative such further
information, certificates and documents as it may reasonably request.
(g) Subsequent to the date hereof, there shall not have
occurred any change, or any development involving a prospective change,
in or affecting the business or properties of Chevron and its
subsidiaries considered as a whole which the Underwriter or the
Representative concludes, in its judgment, after consultation with
Chevron, materially impairs the investment quality of the Designated
Securities so as to make it impractical or inadvisable to proceed with
the public offering or the delivery of the Designated Securities as
contemplated by the Prospectus.
<PAGE>
Section 7. Indemnification and Contribution.
(a) The Company and Chevron agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or the Prospectus, or in
any amendment thereof or supplement thereto relating to the Designated
Securities, 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 agree to reimburse each such
indemnified party for any legal or other expenses reasonably incurred by them,
as so incurred, in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company and
Chevron will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with information furnished to the
Company or Chevron in writing by a Underwriter or on behalf of any Underwriter
through the Representative for use in connection with the preparation thereof.
This indemnity agreement will be in addition to any liability which the Company
or Chevron may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company and Chevron, each of their directors, each of their officers who
signs the Registration Statement, and each person who controls the Company or
Chevron within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company and Chevron to each
Underwriter, but only with reference to information furnished to the Company or
Chevron in writing by an Underwriter or on behalf of such Underwriter through
the Representative for use in the preparation of the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 7. In case any such action
is brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense thereof, with counsel
satisfactory to such indemnified party; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel, to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii).
<PAGE>
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company, Chevron or the Underwriter or Underwriters on
grounds of policy or otherwise, the Company, Chevron and the Underwriter or
Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company, Chevron or one or
more of the Underwriters may be subject in such proportion so that the
Underwriters are responsible for that portion represented by the percentage that
the underwriting discount appearing on the cover page of the Prospectus bears to
the public offering price appearing thereon and Chevron and the Company are
responsible for the balance; provided that (y) in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the Designated Securities) be responsible for any amount in excess
of the underwriting discount applicable to the Designated Securities purchased
by such Underwriter hereunder and (z) 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. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of either the Act or the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company or Chevron within the meaning of either the Act or the
Exchange Act, each officer of the Company or Chevron who shall have signed the
Registration Statement and each director of the Company or Chevron shall have
the same rights to contribution as the Company and Chevron, subject in each case
to clause (y) of this paragraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect of which a claim for contribution may
be made against another party or parties under this paragraph (d), notify such
party or parties from whom contribution may be sought, but the omission to so
notify in writing such party or parties shall not relieve the party or parties
from whom contribution may be sought from any other obligation it or they may
have hereunder or otherwise than under this paragraph (d).
Section 8. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Underwriter or the Representative,
by written notice given to the Company and Chevron prior to delivery of and
payment for the Designated Securities, if prior to such time (i) trading in
securities generally on the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in the reasonable
judgment of the Underwriter or the Representative, impracticable to market the
Designated Securities.
Section 9. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company and Chevron, or their officers and of the Underwriter
or Underwriters set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter, the Company, Chevron, or any of the officers, directors or
controlling persons referred to in Section 7 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 5(e) and 7 hereof
shall survive the termination or cancellation of this Agreement.
Section 10. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any Designated Securities agreed
to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their
obligations under this Agreement, the remaining Underwriters shall be obligated
severally to take up and pay for (in the respective proportions which the amount
of Designated Securities set forth opposite their names in Schedule I of the
Underwriting Agreement bears to the aggregate amount of Designated Securities
set forth opposite the names of all the remaining Underwriters) the Designated
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Designated Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the amount of Designated Securities
set forth in Schedule I of the Underwriting Agreement, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Designated Securities, and if such
non-defaulting Underwriters do not purchase all the
<PAGE>
Designated Securities, this Agreement will terminate without liability to any
non-defaulting Underwriter, the Company or Chevron. In the event of a default
by any Underwriter as set forth in this Section 10, the Closing Date shall be
postponed for such period, not exceeding seven days, as the Underwriter or the
Representative shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company or Chevron
and any non-defaulting Underwriter for damages occasioned by its default
hereunder.
Section 11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their respective
successors and the officers and directors and controlling persons referred to in
Section 7 hereof, and no other person will have any right or obligation
hereunder.
Section 12. Applicable Law. This Agreement will be governed by and
construed in accordance with the laws of the State of New York.
<PAGE>
EXHIBIT A
[FORM OF PILLSBURY MADISON & SUTRO OPINION]
[Date]
Underwriter(s)
Gentlemen and Mesdames:
We have acted as counsel to Chevron Corporation ("Chevron")
and Chevron Canada Capital Company (the "Company") in connection with your
purchase from the Company of $000,000,000 in aggregate principal amount of its
Guaranteed Securities Due 0000 (the "Securities"). Such purchase is made
pursuant to the Underwriting Agreement dated _________________, 19 (the
"Underwriting Agreement") among the Company, Chevron and you, the
Underwriter[s]. The Securities are being issued under an Indenture dated as of
________________, 199 (the "Indenture") among the Company, as issuer, Chevron,
as guarantor, and ____________, as Trustee (the "Trustee"). This opinion is
furnished pursuant to Section 6(b) of the Underwriting Agreement. Terms defined
in the Indenture have the same meanings when used in this opinion.
We have examined executed copies of the Indenture, the Securities,
the Underwriting Agreement, the Registration Statement (as hereinafter defined)
and the Prospectus (as hereinafter defined). We have also examined such other
documents and certificates of public officials and representatives of Chevron
and The Company as we have deemed necessary as a basis for the opinions
expressed herein. As to questions of fact material to such opinions, we have,
when relevant facts were not independently established, relied upon
certificates of officers or authorized representatives of Chevron and The
Company.
We have assumed the genuineness of all signatures and documents
submitted to us as originals, that all copies submitted to us conform to the
originals, the legal capacity of all natural persons, and as to documents
executed by entities other than Chevron or The Company, that each of such
entities has the power to enter into and perform its respective obligations
thereunder, and that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, each of such
entities.
We express no opinion as to the laws of any jurisdiction other
than California, New York and [Canada], and the general corporate law of
Delaware and the Federal laws of the United States of America, and, with respect
to questions of Canadian law, we have relied, with your permission, solely upon
the opinion of __________________, ___________________, Counsel to the Company.
Based upon the foregoing and subject to the qualifications set forth
below, it is our opinion that:
1. Chevron is validly existing and in good standing under the
laws of the State of Delaware and is duly qualified and in good standing to do
business in each other state in which its ownership or leasing of properties
requires such qualification and in which a consequence of the failure to be so
qualified would be materially adverse to the business or financial condition of
Chevron and its subsidiaries taken as
<PAGE>
a whole and possess the requisite corporate power and authority to own its
properties and conduct its businesses consistent with any description thereof
in the prospectus dated ___________________ and the prospectus supplement dated
_____________________, filed with the Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b)(2) of Regulation C under the Securities
Act of 1933, as amended (the "Act") (the prospectus and the prospectus
supplement, including the documents incorporated by reference therein, are
herein collectively referred to as the "Prospectus").
2. The Company is a duly organized and validly existing under the
laws of ________________________.
3. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and has been duly authorized, executed and
delivered by Chevron and the Company and constitutes the valid and binding
obligation of Chevron and the Company enforceable against each in accordance
with its terms.
4. The Securities have been duly authorized, executed and
delivered by the Company and constitute valid and binding obligations of the
Company, enforceable in accordance with their respective terms.
5. The Securities will be entitled to the benefits of the
Indenture, including the Guarantee set forth in Article Four of the Indenture,
and such Guarantee constitutes the valid and binding obligation of Chevron
enforceable in accordance with its terms.
6. The Underwriting Agreement has been duly authorized,
executed and delivered by Chevron and the Company.
7. The Registration Statement of Form S-3 (File No. _______________)
filed by the Company and Chevron with the Commission under Rule 415 of the Act
on ________________ (such Registration Statement including the documents
incorporated by reference therein being herein collectively referred to as the
"Registration Statement") has become effective under the Act, and, to the best
of our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and, except as may be
otherwise indicated in the Prospectus or required by the blue sky or securities
laws of jurisdictions in which the Securities are offered or sold, no further
authorization, consent, approval of or filing with any governmental or
regulatory body, Federal or state, is required to be obtained by the Company or
Chevron in connection with the execution, delivery and performance of the terms
of the Underwriting Agreement, the Indenture or the Securities or the offer and
sale of the Securities as described in the Prospectus, and the execution,
delivery and performance of the terms of the Underwriting Agreement, the
Indenture and the Securities by Chevron or the Company will not contravene any
provision of the Restated Certificate of Incorporation, as amended, or By-Laws
of Chevron, the _______________ of the Company, any Federal law or regulation
or, to the best of our knowledge, any applicable state law or any material
agreement or instrument binding upon Chevron.
8. The Registration Statement and the Prospectus comply as to
form in all material respects with the requirements of the Act and the rules and
regulations of the Commission thereunder; each document filed by Chevron under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
incorporated by reference in the Prospectus complied as to form in all material
respects when so filed with the requirements of the Exchange Act and the rules
and regulations of the Commission thereunder; the statements in the Prospectus
with respect to the terms of the Indenture and the Securities fairly summarize
the terms of such instruments and to the best of our knowledge there are no
other agreements or instruments required to be described or referred to in the
Registration Statement which have not been described or referred to therein; and
while we have not ourselves checked the accuracy or completeness of, or
otherwise verified the information furnished in the Registration Statement, we
have considered the information required to be furnished therein and have
generally reviewed and had discussions with certain officers and employees of
Chevron concerning the information so furnished, whether or not subject to our
checking and verification, and on the basis of such consideration, review and
discussions, but without independent checking or verification, we have no reason
to believe that the Registration Statement or the Prospectus, as of [Date of
Sale], contained any untrue statement of a material fact or omitted to state any
material fact required to be
<PAGE>
stated therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading or that the Registration
Statement or the Prospectus, as of [Close Date], contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; it being understood that
with respect to the matters covered by this paragraph 8, we express no opinion
as to the financial statements or other financial or numerical data contained
in the Registration Statement or the Prospectus.
The opinions set forth in the foregoing are subject to the
following qualifications:
(a) Our opinions in paragraphs 3, 4 and 5 are subject to and
limited by: (i) the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws affecting
or relating to the rights of creditors generally; (ii) the rules governing the
availability of specific performance, injunctive relief or other equitable
remedies and general principles of equity, regardless of whether considered in a
proceeding in equity or at law; (iii) to the extent applicable, the effect of
court decisions invoking statutes or principles of equity, which have held that
certain covenants and provisions of agreements are unenforceable where the
breach of such covenants or provisions imposes restrictions or burdens upon a
borrower, and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the creditor, or
which have held that the creditor's enforcement of such covenants or provisions
under the circumstances would have violated the creditor's covenants of good
faith and fair dealing implied under California law, and (iv) to the extent
applicable, the effect of California statutes and rules of law which cannot be
waived prospectively by a borrower. With respect to the Guarantee set forth in
the Indenture, we note that certain California statutes and cases provide that a
surety may be exonerated if the creditor alters the original obligation of the
principal without the surety's consent, elects remedies for default that may
impair the surety's subrogation rights against the principal, or otherwise takes
action which materially prejudices the surety, without notification of the
surety and opportunity on the part of the surety to cure, unless such rights of
the surety are validly waived. California courts have generally upheld the
waivers of such rights as are contained in the Guarantee under California law;
however, we express no opinion with respect to the effect under California law
(other than California choice of law rules) of any modification of the
obligations of the Company which materially increases such obligations, or any
election of remedies by the Trustee or the holders of the Securities following
the occurrence of a default, or any other action by the Trustee or the holders
of the Securities which materially prejudices Chevron, as guarantor, if such
action occurs without notice and opportunity to cure being granted to Chevron,
as guarantor. However, in our opinion (x) acceleration of the maturity of the
Securities would be available if an Event of Default occurs as a result of
non-payment by Chevron of principal of or interest or any premium on the
Securities or as a result of a material breach by Chevron of a covenant
contained in the Indenture, (y) failure to enforce any such covenant will not
render the Indenture or the Guarantee invalid as a whole and (z) there exists in
the Indenture or pursuant to applicable law legally adequate remedies for a
realization of the principal benefits intended to be provided by the Indenture
or the Guarantee. Notwithstanding the foregoing, we have been advised by
[Cleary, Gottlieb, Steen & Hamilton], upon which advice we rely, that the
waivers and consents in the Guarantee are enforceable under New York law. While
there is no decision of the California Supreme Court directly on point, it is
our opinion that the provisions of Section 14.06 of the Indenture selecting New
York law as the governing law would be honored by a California court applying
California choice of law principles.
(b) Whenever a statement herein is qualified by "known to us",
"to our knowledge" or similar phrase, it indicates that in the course of our
representation of Chevron no information that would give us current actual
knowledge of the inaccuracy of such statement has come to the attention of the
attorneys in this firm who have rendered legal services in connection with this
transaction, including the principal partners of this firm who are familiar with
matters relating to the Company. We have not made any independent investigation
to determine the accuracy of such statement, except as expressly described
herein. No inference as to our knowledge of any matters bearing on the accuracy
of such statement should be drawn from the fact of our representation of Chevron
and the Company in other matters in which such attorneys are not involved.
<PAGE>
This opinion is rendered by us as counsel for Chevron and the
Company solely for your benefit in connection with the transaction referred to
herein and may not be relied upon by you in connection with any other
transaction and may not be relied upon by any other person without our prior
written consent.
Very truly yours,
<PAGE>
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
CHEVRON CAPITAL CORPORATION
********
Article I
The name of the corporation is Chevron Capital Corporation.
Article II
The corporation's registered office is located at 1013 Centre Road in
the City of Wilmington, County of New Castle, state of Delaware. The name of the
corporation's registered agent at such address is Corporation Service Company.
Article III
The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
law of the State of Delaware.
Article IV
The number of shares of stock that the corporation shall have authority
to issue is 1,000 shares of Common Stock of $0.01 par value.
Article V
The corporation shall be entitled to treat the person in whose name any
share is registered as the owner thereof, for all purposes, and shall not be
bound to recognize any equitable or other claim to, or interest in, such share
on the part of any other person, whether or not the corporation shall have
notice thereof, save as expressly provided by the laws of the United States of
America or of the State of Delaware.
Article VI
The Board of Directors is expressly authorized to make and alter the
By-laws of the corporation, without any action on the part of the stockholders;
but the By-laws made by the Directors and the powers so conferred may be altered
or repealed by the Directors or the stockholders.
Article VII
The name and mailing address of the sole incorporator is Frank G.
Soler, 575 Market Street, Suite 3810, San Francisco, CA 94105.
<PAGE>
I, the undersigned, being the sole incorporator, for the purpose of
forming a corporation pursuant to the General Corporation Law of the State of
Delaware, do make this certificate, hereby declaring and certifying that the
facts herein stated are true, and accordingly have hereunto set my hand on April
28, 1999.
/s/ Frank G. Soler
-----------------------------------
Frank G. Soler
<PAGE>
EXHIBIT 3.2
CHEVRON CAPITAL CORPORATION
BY-LAWS
Effective April 29, 1999
------------------------
I
The Board of Directors
1. Authority of Board. The business and affairs of this corporation (herein
------------------
called the "Company") shall be managed by or under the direction of the Board of
Directors, (the "Board") or, if authorized by the Board, by or under the
direction of one or more committees thereof, to the extent permitted by law and
by the Board. The Board or any such authorized committee may delegate management
responsibility to the extent permitted by law and as deemed appropriate by the
Board or such committee. Except as may be otherwise provided by law or these
By-Laws or, in the case of a committee of the Board, by applicable resolution of
the Board or such committee, the Board or any committee thereof may act by
unanimous written consent or, at an authorized meeting at which a quorum is
present, by the vote of the majority of the Directors present at the meeting.
Except as may be otherwise provided by law, the Board shall have power to
determine from time to time whether, and if allowed, when and under what
conditions and regulations any of the accounts and books of the Company shall be
open to inspection. The Board shall not be required to distribute an annual
report to holders of Stock in the Company.
2. Number of Directors, Vacancies. The authorized number of Directors who
------------------------------
shall constitute the Board shall be fixed from time to time by resolution of the
Board. Whenever there shall be fewer Directors in office than the authorized
number of Directors, the Board may, by resolution approved by a majority of the
Directors then in office, choose one or more additional Directors, each of whom
shall hold office until the next annual meeting of stockholders or until his
successor is duly elected.
3. Authorized Meetings of the Board. The Board shall have authority to hold
--------------------------------
annual, regular and special meetings. An annual meeting of the Board may be held
immediately following the annual meeting of the holders of Stock in the Company,
at such place as may be determined by resolution of the Board. Regular meetings
of the Board may be held at such times and places and may be determined from
time to time by resolution of the Board. Special meetings of the Board may be
held at such times and places as may be called by the President or by at least
one-third of the members of the Board.
Both annual and regular meetings of the Board may be held without notice
thereof. However, a special meeting of the Board shall be an authorized meeting
only if actual or constructive notice of the time and place thereof has been
given to each Director, or all Directors waive notice thereof. Such notice for
any Director may be given orally in person or by telephone by any officer of the
Company, or delivered by hand or transmitted electronically by the Company to
the Director's business address. Such notice shall be given not less
than one hour before the hour
<PAGE>
fixed for the special meeting. If the notice does not state the place of the
meeting, the meeting shall be held at the office of the Secretary of the
Company.
One-third of the authorized number of Directors shall constitute a quorum
at any Board meetings. If any meeting of the Board shall lack a quorum, a
majority of the Directors present may adjourn the meeting from time to time,
without notice, until a quorum is obtained.
4. Committees. The Board may, by resolution approved by at least a majority
----------
of the authorized number of Directors, provide for one or more committees of the
Board with such powers, duties and rules of procedure as may be provided by, or
established in accordance with the direction of, the Board. Except as may be
established to the contrary by applicable resolution of the Board, at any
meeting of any such committee of the Board, the member or members thereof who
are present and not disqualified from voting, whether or not constituting a
quorum, may unanimously appoint another Director to act in the place of any
absent or disqualified member Director.
II
Officers
1. Designated Officers. The officers of the Company shall consist of a
-------------------
President, one or more Vice-Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, and such other
officers as may be appointed to hold such offices as may from time to time be
created by resolution of the Board. The Treasurer shall be the chief financial
officer of the Company unless the Board designates another officer as such.
2. Appointment and Removal of Officers. The President shall from time to
-----------------------------------
time be appointed by, and serve at the pleasure of, the Board. The Board or the
President may appoint other designated officers to serve at the pleasure of the
Board and the President. The Board or the President may remove any officer, with
or without cause.
3. Resignation of Officers. Any officer may also resign at any time by
-----------------------
giving written notice to the Board, the President or the Secretary.
4. President. The President shall preside at all meetings of the
---------
stockholders and the Board, shall be the chief executive officer of the Company,
and shall perform all other duties as may from time to time be assigned to him
by, or be in accordance with the direction of, the Board.
5. Vice-Presidents. In the event of the absence or disability of the
---------------
President, one of the Vice-Presidents may be designated by the Board or the
President to exercise his power and perform his duties, and the Vice-Presidents
shall perform all other duties as may from time to time be assigned to them by
the Board or the President, or otherwise be in accordance with the direction of
the Board.
<PAGE>
6. Secretary. The Secretary shall keep full and complete records of the
---------
proceedings of the Board and committees thereof and of the meetings of the
stockholders; keep the seal of the
Company, and affix the same to all instruments which may require it; have
custody of and maintain the Company's stockholder records; and perform all other
duties as may from time to time be assigned to him by, or be in accordance with
the direction of, the Board.
7. Assistant Secretaries. The Assistant Secretaries shall assist the
---------------------
Secretary in the performance of his duties and perform all other duties as may
from tune to time be assigned to them by, or be in accordance with the direction
of, the Board.
8. Treasurer. The Treasurer shall have custody of the funds of the Company,
---------
and deposit and pay out such funds, from time to time, in such manner as may be
prescribed by, or be in accordance with the direction of, the Board, and shall
perform all other duties as may from time to time be assigned to him by, or be
in accordance with the direction of, the Board.
9. Assistant Treasurers. The Assistant Treasurers shall assist the
--------------------
Treasurer in the performance of his duty and generally perform all other duties
as may from time to time be assigned to them by, or be in accordance with the
direction of, the Board.
10. Other Officers. Any other elected officer shall have such powers and
--------------
perform such duties as may from time to time be assigned to him by, or be in
accordance with the direction of, the Board.
11. Powers of Attorney. Whenever an applicable statute, decree, rule or
------------------
regulation requires a document to be subscribed by a particular officer of the
Company, such document may be signed on behalf of such officer by a duly
appointed attorney-in-fact except as otherwise directed by the Board or limited
by law.
III
Offices
The Company shall have offices at such place or places as the Board or the
President may from time to time determine.
IV
Stock and Stock Certificates
1. Stock. Holders of shares of Stock (other than treasury shares held by
-----
the Company) shall be entitled to receive such dividends or distributions as are
lawfully declared on the Stock; to have notice of any authorized meeting of
holders of Stock in the Company; and to one vote for each share of Stock on all
matters which are properly submitted to a vote of the holders of Stock.
<PAGE>
Shares of Stock shall be represented by certificates, which shall be
registered upon the books of the Company.
2. Form of Certificates. Certificates of Stock shall not have any validity
--------------------
whatsoever until and unless they have been signed as hereinbelow provided. All
certificates
shall be signed by the President or a Vice-President, together with the
Secretary or an Assistant Secretary of the Company. All such certificates shall
bear the seal of the Company or a facsimile thereof.
Certificates of Stock signed by the President or a Vice-President, together
with the Secretary or an Assistant Secretary, being such at the time of such
signing, and if regular in other respects, shall be valid, whether such officers
hold their respective positions at the date of issue or not.
Any signature or countersignature on certificates of Stock may be an actual
signature or a printed or engraved facsimile thereof.
3. Stock Transfers. Transfer of shares of Stock shall be made on the books
---------------
of the Company only upon the surrender of a valid certificate of Stock endorsed
by the person named in the certificate or by an attorney lawfully constituted in
writing. The Company may impose such additional conditions to the transfer of
its stock as may be necessary or appropriate for compliance with applicable law
or to protect the Company from liability with respect to such transfer.
4. Holders of Record. The Board may fix a time as a record date for the
-----------------
determination of holders of Stock entitled to receive any dividend or
distribution declared to be payable on any shares of the Company; or to vote
upon any matter to be submitted to the vote of any holders of Stock in the
Company; or to be present or to be represented by proxy at any meeting of the
holders of Stock in the Company, which record date in the case of a meeting of
the holders of Stock shall not be more than sixty nor less than ten days before
the date set for such meeting; and only holders of record as of the record date
shall be entitled to receive such dividend or distribution, or to vote on such
matter, or to be present or represented by proxy at such meeting.
V
Meetings of Holders of Stock
1. Annual Meeting of Holders of Stock. An annual meeting of the holders of
----------------------------------
Stock in the Company shall be held on a date and at a time designated by
resolution of the Board of Directors. At the annual meeting, Directors shall be
elected to serve for the ensuing year and until their successors are elected.
Any other proper business may also be transacted at the annual meeting.
2. Special Meeting of Stockholders. Special meetings of holders of Stock
-------------------------------
may be called at any time by the Board, the President, or by holders possessing
at least ten
<PAGE>
percent of the issued and outstanding shares of Stock, to be held
not less than ten nor more than sixty days after the request therefor.
3. Places of Meetings. The Board may determine where each meeting of
------------------
holders of Stock shall be held, but in the absence of any designation by the
Board of the meeting place, meetings of holders of Stock shall be held at the
office of the Secretary of the Company.
4. Notices of Meetings. Written notice of all meetings of the holders of
-------------------
Stock stating the place, date and hour of the meeting, shall be mailed, postage
prepaid, or delivered, not less than ten nor more than sixty days before such
meeting to each holder entitled to notice of, or to vote at, any meeting of
holders of Stock at the address of such holder as it appears on the records of
the Company.
5. Quorum for Action by Holders Of Stock Elections. At all elections or
-----------------------------------------------
votes had for any purpose, there must be a majority of the outstanding shares of
Stock represented. Except as may otherwise be provided by law, all elections
shall be held and all questions decided by a majority of the shares of Stock
which are voted.
6. Proxies. At any meeting of the holders of Stock, any holder of record
-------
entitled to vote thereat may be represented and have his shares voted by a proxy
or proxies appointed by an instrument in writing executed by the stockholder of
record.
7. Adjournments. Any meeting of the holders of Stock (whether annual or
------------
special and whether or not a quorum shall have been present), may be adjourned
from time to time and from place to place by vote of a majority of the shares of
Stock represented at such meeting, without notice other than announcement at
such meeting of the time and place at which the meeting is to be resumed--such
adjournment and the reasons therefor being recorded in the journal of
proceedings of the meeting. At any meeting so resumed after such adjournment,
provided a majority of the outstanding shares of Stock shall then be
represented, any business may be transacted which might have been transacted at
the meeting as originally scheduled.
VI
Corporate Seal
The seal of the Company shall have the name of the Company inscribed
thereon, together with the date and State of incorporation.
VII
Amendments
Any of these By-Laws may be altered, amended or repealed by the holders of
a majority of the outstanding shares of Stock; or any of these By-Laws may be
altered, amended or repealed by resolution of the Board approved by at least a
majority of the Directors then in office.
<PAGE>
EXHIBIT 3.3
MEMORANDUM OF ASSOCIATION
OF
CHEVRON CANADA CAPITAL COMPANY
1. The name of the Company is Chevron Canada Capital Company.
2. There are no restrictions on the objects and powers of the Company and
the Company shall expressly have the following powers:
(1) to sell or dispose of its undertaking, or a substantial part thereof;
(2) to distribute any of its property in specie among its members; and
(3) to amalgamate with any company or other body of persons.
3. The liability of the members is unlimited.
I, the undersigned, whose name, address and occupation are subscribed,
am desirous of being formed into a company in pursuance of this Memorandum of
Association, and I agree to take the number and kind of shares in the capital
stock of the Company written below my name.
/s/ Charles S. Reagh
------------------------------------------------
Name of Subscriber: Charles S. Reagh
800-1959 Upper Water Street, Halifax, NS B3J 2X2
Occupation: Solicitor
Number of shares subscribed: One Common share
TOTAL SHARES TAKEN: one common share
Dated this 5th day of November, 1999.
Witness to above signature:
/s/ Leanne M. Thomas
------------------------------------------------
Name of Witness: Leanne M. Thomas
800-1959 Upper Water Street, Halifax, NS B3J 2X2
Occupation: Legal Assistant
<PAGE>
EXHIBIT 3.4
ARTICLES OF ASSOCIATION
OF
CHEVRON CANADA CAPITAL COMPANY
INTERPRETATION
1. In these Articles, unless there be something in the subject or context
inconsistent therewith:
(1) "Act" means the Companies Act (Nova Scotia);
(2) "Articles" means these Articles of Association of the Company and
all amendments hereto;
(3) "Company" means the company named above;
(4) "director" means a director of the Company;
(5) "Memorandum" means the Memorandum of Association of the Company and
all amendments thereto;
(6) "month" means calendar month;
(7) "Office" means the registered office of the Company;
(8) "person" includes a body corporate;
(9) "proxyholder" includes an alternate proxyholder;
(10) "Register" means the register of members kept pursuant to the
Act, and where the context permits includes a branch register
of members;
(11) "Registrar" means the Registrar as defined in the Act;
(12) "Secretary" includes any person appointed to perform the duties of
the Secretary temporarily;
(13) "shareholder" means member as that term is used in the Act in
connection with an unlimited company having share capital and
as that term is used in the Memorandum;
(14) "special resolution" has the meaning assigned by the Act;
(15) "in writing" and "written" includes printing, lithography and
other modes of representing or reproducing words in visible
form;
(16) words importing number or gender include all numbers and
genders unless the context otherwise requires.
<PAGE>
-2-
2. The regulations in Table A in the First Schedule to the Act shall not apply
to the Company.
3. The directors may enter into and carry into effect or adopt and carry
into effect any agreement made by the promoters of the Company on
behalf of the Company and may agree to any modification in the terms of
any such agreement, either before or after its execution.
4. The directors may, out of the funds of the Company, pay all expenses
incurred for the incorporation and organization of the Company.
5. The Company may commence business on the day following incorporation or
so soon thereafter as the directors think fit, notwithstanding that
part only of the shares has been allotted.
SHARES
6. The capital of the company shall consist of 100,000 common shares
without nominal or par value, with the power to divide the shares in
the capital for the time being into classes or series and to attach
thereto respectively any preferred, deferred or qualified rights,
privileges or conditions, including restrictions on voting rights and
including redemption, purchase and other acquisition of such shares,
subject, however, to the provisions of the Act.
7. The directors shall control the shares and, subject to the provisions
of these Articles, may allot or otherwise dispose of them to such
person at such times, on such terms and conditions and, if the shares
have a par value, either at a premium or at par, as they think fit.
8. The directors may pay on behalf of the Company a reasonable commission
to any person in consideration of subscribing or agreeing to subscribe
(whether absolutely or conditionally) for any shares in the Company, or
procuring or agreeing to procure subscriptions (whether absolute or
conditional) for any shares in the Company. Subject to the Act, the
commission may be paid or satisfied in shares of the Company.
9. On the issue of shares the Company may arrange among the holders
thereof differences in the calls to be paid and in the times for their
payment.
10. If the whole or part of the allotment price of any shares is, by the
conditions of their allotment, payable in instalments, every such
instalment shall, when due, be payable to the Company by the person who
is at such time the registered holder of the shares.
11. Shares may be registered in the names of joint holders not exceeding three
in number.
12. Joint holders of a share shall be jointly and severally liable for the
payment of all instalments and calls due in respect of such share. On
the death of one or more joint holders of shares the survivor or
survivors of them shall alone be recognized by the Company as the
registered holder or holders of the shares.
<PAGE>
-3-
13. Save as herein otherwise provided, the Company may treat the registered
holder of any share as the absolute owner thereof and accordingly shall
not, except as ordered by a court of competent jurisdiction or required
by statute, be bound to recognize any equitable or other claim to or
interest in such share on the part of any other person.
CERTIFICATES
14. Certificates of title to shares shall comply with the Act and may
otherwise be in such form as the directors may from time to time determine.
Unless the directors otherwise determine, every certificate of title to
shares shall be signed manually by at least one of the Chairman, President,
Secretary, Treasurer, a vice-president, an assistant secretary, an
assistant treasurer, any other officer of the Company or any director of
the Company or by or on behalf of a share registrar transfer agent or
branch transfer agent appointed by the Company or by any other person whom
the directors may designate. When signatures of more than one person
appear on a certificate all but one may be printed or otherwise
mechanically reproduced. All such certificates when signed as provided
in this Article shall be valid and binding upon the Company. If a
certificate contains a printed or mechanically reproduced signature of a
person, the Company may issue the certificate, notwithstanding that the
person has ceased to be a director or an officer of the Company and the
certificate is as valid as if such person were a director or an officer
at the date of its issue.
15. Except as the directors may determine, each shareholder's shares may be
evidenced by any number of certificates so long as the aggregate of the
shares stipulated in such certificates equals the aggregate registered
in the name of the shareholder.
16. Where shares are registered in the names of two or more persons, the
Company shall not be bound to issue more than one certificate or set of
certificates, and such certificate or set of certificates shall be
delivered to the person first named on the Register.
17. Any certificate that has become worn, damaged or defaced may, upon its
surrender to the directors, be cancelled and replaced by a new
certificate. Any certificate that has become lost or destroyed may be
replaced by a new certificate upon proof of such loss or destruction to
the satisfaction of the directors and the furnishing to the Company of
such undertakings of indemnity as the directors deem adequate.
18. The sum of one dollar or such other sum as the directors from time to
time determine shall be paid to the Company for every certificate other
than the first certificate issued to any holder in respect of any share
or shares.
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19. The directors may cause one or more branch Registers of shareholders to
be kept in any place or places, whether inside or outside of Nova
Scotia.
<PAGE>
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CALLS
20. The directors may make such calls upon the shareholders in respect of
all amounts unpaid on the shares held by them respectively and not made
payable at fixed times by the conditions on which such shares were
allotted, and each shareholder shall pay the amount of every call so
made to the person and at the times and places appointed by the
directors. A call may be made payable by instalments.
21. A call shall be deemed to have been made at the time when the
resolution of the directors authorizing such call was passed.
22. At least 14 days' notice of any call shall be given, and such notice
shall specify the time and place at which and the person to whom such
call shall be paid.
23. If the sum payable in respect of any call or instalment is not paid on
or before the day appointed for the payment thereof, the holder for the
time being of the share in respect of which the call has been made or
the instalment is due shall pay interest on such call or instalment at
the rate of 9% per year or such other rate of interest as the directors
may determine from the day appointed for the payment thereof up to the
time of actual payment.
24. At the trial or hearing of any action for the recovery of any amount
due for any call, it shall be sufficient to prove that the name of the
shareholder sued is entered on the Register as the holder or one of the
holders of the share or shares in respect of which such debt accrued,
that the resolution making the call is duly recorded in the minute book
and that such notice of such call was duly given to the shareholder
sued in pursuance of these Articles. It shall not be necessary to prove
the appointment of the directors who made such call or any other
matters whatsoever and the proof of the matters stipulated shall be
conclusive evidence of the debt.
FORFEITURE OF SHARES
25. If any shareholder fails to pay any call or instalment on or before the
day appointed for payment, the directors may at any time thereafter
while the call or instalment remains unpaid serve a notice on such
shareholder requiring payment thereof together with any interest that
may have accrued and all expenses that may have been incurred by the
Company by reason of such non-payment.
26. The notice shall name a day (not being less than 14 days after the date
of the notice) and a place or places on and at which such call or
instalment and such interest and expenses are to be paid. The notice
shall also state that, in the event of non-payment on or before the day
and at the place or one of the places so named, the shares in respect
of which the call was made or instalment is payable will be liable to
be forfeited.
27. If the requirements of any such notice are not complied with, any
shares in respect of which such notice has been given may at any time
thereafter, before payment of all calls or instalments, interest and
expenses due in respect thereof, be forfeited by a resolution of the
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directors to that effect. Such forfeiture shall include all dividends
declared in respect of the forfeited shares and not actually paid before
the forfeiture.
28. When any share has been so forfeited, notice of the resolution shall be
given to the shareholder in whose name it stood immediately prior to the
forfeiture and an entry of the forfeiture shall be made in the Register.
29. Any share so forfeited shall be deemed the property of the Company and
the directors may sell, re-allot or otherwise dispose of it in such
manner as they think fit.
30. The directors may at any time before any share so forfeited has been
sold, re-allotted or otherwise disposed of, annul the forfeiture
thereof upon such conditions as they think fit.
31. Any shareholder whose shares have been forfeited shall nevertheless be
liable to pay and shall forthwith pay to the Company all calls,
instalments, interest and expenses owing upon or in respect of such
shares at the time of the forfeiture together with interest thereon at
the rate of 9% per year or such other rate of interest as the directors
may determine from the time of forfeiture until payment. The directors
may enforce such payment if they think fit, but are under no obligation
to do so.
32. A certificate signed by the Secretary stating that a share has been
duly forfeited on a specified date in pursuance of these Articles and
the time when it was forfeited shall be conclusive evidence of the
facts therein stated as against any person who would have been entitled
to the share but for such forfeiture.
LIEN ON SHARES
33. The Company shall have a first and paramount lien upon all shares
(other than fully paid-up shares) registered in the name of a
shareholder (whether solely or jointly with others) and upon the
proceeds from the sale thereof for debts, liabilities and other
engagements of the shareholder, solely or jointly with any other
person, to or with the Company, whether or not the period for the
payment, fulfilment or discharge thereof has actually arrived, and such
lien shall extend to all dividends declared in respect of such shares.
Unless otherwise agreed, the registration of a transfer of shares shall
operate as a waiver of any lien of the Company on such shares.
34. For the purpose of enforcing such lien the directors may sell the
shares subject to it in such manner as they think fit, but no sale
shall be made until the period for the payment, fulfilment or discharge
of such debts, liabilities or other engagements has arrived, and until
notice in writing of the intention to sell has been given to such
shareholder or the shareholder's executors or administrators and
default has been made by them in such payment, fulfilment or discharge
for seven days after such notice.
35. The net proceeds of any such sale after the payment of all costs shall
be applied in or towards the satisfaction of such debts, liabilities or
engagements and the residue, if any, paid to such shareholder.
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VALIDITY OF SALES
36. Upon any sale after forfeiture or to enforce a lien in purported
exercise of the powers given by these Articles the directors may cause
the purchaser's name to be entered in the Register in respect of the
shares sold, and the purchaser shall not be bound to see to the
regularity of the proceedings or to the application of the purchase
money, and after the purchaser's name has been entered in the Register
in respect of such shares the validity of the sale shall not be
impeached by any person and the remedy of any person aggrieved by the
sale shall be in damages only and against the Company exclusively.
TRANSFER OF SHARES
37. The instrument of transfer of any share in the Company shall be signed
by the transferor. The transferor shall be deemed to remain the holder
of such share until the name of the transferee is entered in the
Register in respect thereof and shall be entitled to receive any
dividend declared thereon before the registration of the transfer.
38. The instrument of transfer of any share shall be in writing in the
following form or to the following effect:
For value received, ___________ hereby sell, assign, and transfer unto
________, _________ shares in the capital of the Company represented
by the within certificate, and do hereby irrevocably constitute and
appoint ____________ attorney to transfer such shares on the books of
the Company with full power of substitution in the premises.
Dated the _____ day of ________________, _____
Witness:
39. The directors may, without assigning any reason therefor, decline to
register any transfer of shares
(1) not fully paid-up or upon which the Company has a lien, or
(2) the transfer of which is restricted by any agreement to which the
Company is a party.
40. Every instrument of transfer shall be left for registration at the
Office of the Company, or at any office of its transfer agent where a
Register is maintained, together with the certificate of the shares to
be transferred and such other evidence as the Company may require to
prove title to or the right to transfer the shares.
41. The directors may require that a fee determined by them be paid before
or after registration of any transfer.
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42. Every instrument of transfer shall, after its registration, remain in
the custody of the Company. Any instrument of transfer that the
directors decline to register shall, except in case of fraud, be
returned to the person who deposited it.
TRANSMISSION OF SHARES
43. The executors or administrators of a deceased shareholder (not being
one of several joint holders) shall be the only persons recognized by
the Company as having any title to the shares registered in the name of
such shareholder. When a share is registered in the names of two or
more joint holders, the survivor or survivors or the executors or
administrators of the deceased shareholder, shall be the only persons
recognized by the Company as having any title to, or interest in, such
share.
44. Notwithstanding anything in these Articles, if the Company has only one
shareholder (not being one of several joint holders) and that
shareholder dies, the executors or administrators of the deceased
shareholder shall be entitled to register themselves in the Register as
the holders of the shares registered in the name of the deceased
shareholder whereupon they shall have all the rights given by these
Articles and by law to shareholders.
45. Any person entitled to shares upon the death or bankruptcy of any
shareholder or in any way other than by allotment or transfer, upon
producing such evidence of entitlement as the directors require, may be
registered as a shareholder in respect of such shares, or may, without
being registered, transfer such shares subject to the provisions of
these Articles respecting the transfer of shares. The directors shall
have the same right to refuse registration as if the transferee were
named in an ordinary transfer presented for registration.
SURRENDER OF SHARES
46. The directors may accept the surrender of any share by way of
compromise of any question as to the holder being properly registered
in respect thereof. Any share so surrendered may be disposed of in the
same manner as a forfeited share.
INCREASE AND REDUCTION OF CAPITAL
47. Subject to the Act, the shareholders may by special resolution amend
these Articles to increase or alter the share capital of the Company
as they think expedient. Without prejudice to any special rights
previously conferred on the holders of existing shares, any share may
be issued with such preferred, deferred or other special rights, or with
such restrictions, whether in regard to dividends, voting, return of share
capital or otherwise, as the shareholders may from time to time determine
by special resolution. Except as otherwise provided by the conditions of
issue, or by these Articles, any capital raised by the creation of new
shares shall be considered part of the original capital and shall be
subject to the provisions herein contained with reference to payment of
calls and instalments, transfer and transmission, forfeiture, lien and
otherwise.
<PAGE>
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48. The Company may, by special resolution where required, reduce its share
capital in any way and with and subject to any incident authorized and
consent required by law. Subject to the Act and any provisions attached
to such shares, the Company may redeem, purchase or acquire any of its
shares and the directors may determine the manner and the terms for
redeeming, purchasing or acquiring such shares and may provide a
sinking fund on such terms as they think fit for the redemption,
purchase or acquisition of shares of any class or series.
MEETINGS AND VOTING BY CLASS OR SERIES
49. Where the holders of shares of a class or series have, under the Act,
the terms or conditions attaching to such shares or otherwise, the
right to vote separately as a class in respect of any matter then,
except as provided in the Act, these Articles or such terms or
conditions, all the provisions in these Articles concerning general
meetings (including, without limitation, provisions respecting notice,
quorum and procedure) shall, mutatis mutandis, apply to every meeting
of holders of such class or series of shares convened for the purpose
of such vote.
50. Unless the rights, privileges, terms or conditions attached to a class
or series of shares provide otherwise, such class or series of shares
shall not have the right to vote separately as a class or series upon
an amendment to the Memorandum or Articles to:
(1) increase or decrease any maximum number of authorized shares of such
class or series, or increase any maximum number of authorized shares
of a class or series having rights or privileges equal or superior to
the shares of such class or series;
(2) effect an exchange, reclassification or cancellation of all or part of
the shares of such class or series; or
(3) create a new class or series of shares equal or superior to the shares
of such class or series.
BORROWING POWERS
51. The directors on behalf of the Company may:
(1) raise or borrow money for the purposes of the Company or any of them;
(2) secure, subject to the sanction of a special resolution where required
by the Act, the repayment of funds so raised or borrowed in such
manner and upon such terms and conditions in all respects as they
think fit, and in particular by the execution and delivery of
mortgages of the Company's real or personal property, or by the issue
of bonds, debentures or other securities of the Company secured by
mortgage or other charge upon all or any part of the property of the
Company, both present and future including its uncalled capital for
the time being;
<PAGE>
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(3) sign or endorse bills, notes, acceptances, cheques, contracts, and
other evidence of or securities for funds borrowed or to be borrowed
for the purposes aforesaid;
(4) pledge debentures as security for loans;
(5) guarantee obligations of any person.
52. Bonds, debentures and other securities may be made assignable, free from
any equities between the Company and the person to whom such securities
were issued.
53. Any bonds, debentures and other securities may be issued at a discount,
premium or otherwise and with special privileges as to redemption,
surrender, drawings, allotment of shares, attending and voting at general
meetings of the Company, appointment of directors and other matters.
GENERAL MEETINGS
54. Ordinary general meetings of the Company shall be held at least once in
every calendar year at such time and place as may be determined by the
directors and not later than 15 months after the preceding ordinary general
meeting. All other meetings of the Company shall be called special general
meetings. Ordinary or special general meetings may be held either within or
without the Province of Nova Scotia.
55. The President, a vice-president or the directors may at any time convene a
special general meeting, and the directors, upon the requisition of
shareholders in accordance with the Act shall forthwith proceed to convene
such meeting or meetings to be held at such time and place or times and
places as the directors determine.
56. The requisition shall state the objects of the meeting requested, be signed
by the requisitionists and deposited at the Office of the Company. It may
consist of several documents in like form each signed by one or more of the
requisitionists.
57. At least seven clear days' notice, or such longer period of notice as may
be required by the Act, of every general meeting, specifying the place, day
and hour of the meeting and, when special business is to be considered, the
general nature of such business, shall be given to the shareholders
entitled to be present at such meeting by notice given as permitted by
these Articles. With the consent in writing of all the shareholders
entitled to vote at such meeting, a meeting may be convened by a shorter
notice and in any manner they think fit, or notice of the time, place and
purpose of the meeting may be waived by all of the shareholders.
58. When it is proposed to pass a special resolution, the two meetings may be
convened by the same notice, and it shall be no objection to such notice
that it only convenes the second meeting contingently upon the resolution
being passed by the requisite majority at the first meeting.
<PAGE>
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59. The accidental omission to give notice to a shareholder, or non-receipt of
notice by a shareholder, shall not invalidate any resolution passed at any
general meeting.
RECORD DATES
60. (1) The directors may fix in advance a date as the record date for the
determination of shareholders
(a) entitled to receive payment of a dividend or entitled to receive
any distribution;
(b) entitled to receive notice of a meeting; or
(c) for any other purpose.
(2) If no record date is fixed, the record date for the determination of
shareholders
(a) entitled to receive notice of a meeting shall be the day
immediately preceding the day on which the notice is given, or,
if no notice is given, the day on which the meeting is held; and
(b) for any other purpose shall be the day on which the directors
pass the resolution relating to the particular purpose.
PROCEEDINGS AT GENERAL MEETINGS
61. The business of an ordinary general meeting shall be to receive and
consider the financial statements of the Company and the report of the
directors and the report, if any, of the auditors, to elect directors in
the place of those retiring and to transact any other business which under
these Articles ought to be transacted at an ordinary general meeting.
62. No business shall be transacted at any general meeting unless the requisite
quorum is present at the commencement of the business. A corporate
shareholder of the Company that has a duly authorized agent or
representative present at any such meeting shall for the purpose of this
Article be deemed to be personally present at such meeting.
63. One person, being a shareholder, proxyholder or representative of a
corporate shareholder, present and entitled to vote shall constitute a
quorum for a general meeting, and may hold a meeting.
64. The Chairman shall be entitled to take the chair at every general meeting
or, if there be no Chairman, or if the Chairman is not present within
fifteen 15 minutes after the time appointed for holding the meeting, the
President or, failing the President, a vice-president shall be entitled to
take the chair. If the Chairman, the President or a vice-president is not
present within 15 minutes after the time appointed for holding the meeting
or if all such persons present decline to take the chair, the shareholders
present entitled to vote at the
<PAGE>
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meeting shall choose another director as chairman and if no director is
present or if all the directors present decline to take the chair, then
such shareholders shall choose one of their number to be chairman.
65. If within half an hour from the time appointed for a general meeting a
quorum is not present, the meeting, if it was convened pursuant to a
requisition of shareholders, shall be dissolved; if it was convened in any
other way, it shall stand adjourned to the same day, in the next week, at
the same time and place. If at the adjourned meeting a quorum is not
present within half an hour from the time appointed for the meeting, the
shareholders present shall be a quorum and may hold the meeting.
66. Subject to the Act, at any general meeting a resolution put to the meeting
shall be decided by a show of hands unless, either before or on the
declaration of the result of the show of hands, a poll is demanded by the
chairman, a shareholder or a proxyholder; and unless a poll is so demanded,
a declaration by the chairman that the resolution has been carried, carried
by a particular majority, lost or not carried by a particular majority and
an entry to that effect in the Company's book of proceedings shall be
conclusive evidence of the fact without proof of the number or proportion
of the votes recorded in favour or against such resolution.
67. When a poll is demanded, it shall be taken in such manner and at such time
and place as the chairman directs, and either at once or after an interval
or adjournment or otherwise. The result of the poll shall be the resolution
of the meeting at which the poll was demanded. The demand of a poll may be
withdrawn. When any dispute occurs over the admission or rejection of a
vote, it shall be resolved by the chairman and such determination made in
good faith shall be final and conclusive.
68. The chairman shall not have a casting vote in addition to any vote or votes
that the chairman has as a shareholder.
69. The chairman of a general meeting may with the consent of the meeting
adjourn the meeting from time to time and from place to place, but no
business shall be transacted at any adjourned meeting other than the
business left unfinished at the meeting that was adjourned.
70. Any poll demanded on the election of a chairman or on a question of
adjournment shall be taken forthwith without adjournment.
71. The demand of a poll shall not prevent the continuance of a meeting for the
transaction of any business other than the question on which a poll has
been demanded.
VOTES OF SHAREHOLDERS
72. Subject to the Act and to any provisions attached to any class or series of
shares concerning or restricting voting rights:
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(1) on a show of hands every shareholder entitled to vote present in
person, every duly authorized representative of a corporate
shareholder, and, if not prevented from voting by the Act, every
proxyholder, shall have one vote; and
(2) on a poll every shareholder present in person, every duly authorized
representative of a corporate shareholder, and every proxyholder,
shall have one vote for every share held;
whether or not such representative or proxyholder is a shareholder.
73. Any person entitled to transfer shares upon the death or bankruptcy of
any shareholder or in any way other than by allotment or transfer may
vote at any general meeting in respect thereof in the same manner as
if such person were the registered holder of such shares so long as
the directors are satisfied at least 48 hours before the time of
holding the meeting of such person's right to transfer such shares.
74. Where there are joint registered holders of any share, any of such
holders may vote such share at any meeting, either personally or by
proxy, as if solely entitled to it. If more than one joint holder is
present at any meeting, personally or by proxy, the one whose name
stands first on the Register in respect of such share shall alone be
entitled to vote it. Several executors or administrators of a deceased
shareholder in whose name any share stands shall for the purpose of
this Article be deemed joint holders thereof.
75. Votes may be cast either personally or by proxy or, in the case of a
corporate shareholder by a representative duly authorized under the
Act.
76. A proxy shall be in writing and executed in the manner provided in the
Act. A proxy or other authority of a corporate shareholder does not
require its seal.
77. A shareholder of unsound mind in respect of whom an order has been
made by any court of competent jurisdiction may vote by guardian or
other person in the nature of a guardian appointed by that court, and
any such guardian or other person may vote by proxy.
78. A proxy and the power of attorney or other authority, if any, under
which it is signed or a notarially certified copy of that power or
authority shall be deposited at the Office of the Company or at such
other place as the directors may direct. The directors may, by
resolution, fix a time not exceeding 48 hours excluding Saturdays and
holidays preceding any meeting or adjourned meeting before which time
proxies to be used at that meeting must be deposited with the Company
at its Office or with an agent of the Company. Notice of the
requirement for depositing proxies shall be given in the notice
calling the meeting. The chairman of the meeting shall determine all
questions as to validity of proxies and other instruments of authority.
79. A vote given in accordance with the terms of a proxy shall be valid
notwithstanding the previous death of the principal, the revocation of the
proxy, or the transfer of the share in respect of which the vote is given,
provided no intimation in writing of the death, revocation
<PAGE>
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or transfer is received at the Office of the Company before the meeting or
by the chairman of the meeting before the vote is given.
80. Every form of proxy shall comply with the Act and its regulations and
subject thereto may be in the following form:
I ____________, of ____________ being a shareholder of ____________
hereby appoint ____________of ____________(or failing him/her
____________ of ____________) as my proxyholder to attend and to vote
for me and on my behalf at the ordinary/special general meeting of the
Company, to be held on the day of and at any adjournment thereof, or
at any meeting of the Company which may be held prior to [insert
specified date or event]. [If the proxy is solicited by or behalf of
the management of the Company, insert a statement to that effect.]
Dated ________ this day of ________ ____.
____________________
Shareholder
81. Subject to the Act, no shareholder shall be entitled to be present or to
vote on any question, either personally or by proxy, at any general meeting
or be reckoned in a quorum while any call is due and payable to the Company
in respect of any of the shares of such shareholder.
82. Any resolution passed by the directors, notice of which has been given to
the shareholders in the manner in which notices are hereinafter directed to
be given and which is, within one month after it has been passed, ratified
and confirmed in writing by shareholders entitled on a poll to three-fifths
of the votes, shall be as valid and effectual as a resolution of a general
meeting. This Article shall not apply to a resolution for winding up the
Company or to a resolution dealing with any matter that by statute or these
Articles ought to be dealt with by a special resolution or other method
prescribed by statute.
83. A resolution, including a special resolution, in writing and signed by
every shareholder who would be entitled to vote on the resolution at a
meeting is as valid as if it were passed by such shareholders at a meeting
and satisfies all of the requirements of the Act respecting meetings of
shareholders.
DIRECTORS
84. Unless otherwise determined by resolution of shareholders, the number of
directors shall not be less than one or more than ten.
85. Notwithstanding anything herein contained the subscribers to the Memorandum
shall be the first directors of the Company.
86. The directors may be paid out of the funds of the Company as remuneration
for their service such sums, if any, as the Company may by resolution of
its shareholders determine, and such remuneration shall be divided among
them in such proportions and manner as the directors determine. The
directors may also be paid their reasonable travelling, hotel and other
<PAGE>
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expenses incurred in attending meetings of directors and otherwise in the
execution of their duties as directors.
87. The continuing directors may act notwithstanding any vacancy in their body,
but if their number falls below the minimum permitted, the directors shall
not, except in emergencies or for the purpose of filling vacancies, act so
long as their number is below the minimum.
88. A director may, in conjunction with the office of director, and on such
terms as to remuneration and otherwise as the directors arrange or
determine, hold any other office or place of profit under the Company or
under any company in which the Company is a shareholder or is otherwise
interested or is otherwise affiliated.
89. The office of a director shall ipso facto be vacated, if the director:
(1) becomes bankrupt or makes an assignment for the benefit of creditors;
(2) is, or is found by a court of competent jurisdiction to be, of unsound
mind;
(3) by notice in writing to the Company, resigns the office of director;
or
(4) is removed in the manner provided by these Articles.
90. No director shall be disqualified by holding the office of director from
contracting with the Company, either as vendor, purchaser, or otherwise,
nor shall any such contract, or any contract or arrangement entered into or
proposed to be entered into by or on behalf of the Company in which any
director is in any way interested, either directly or indirectly, be
avoided, nor shall any director so contracting or being so interested be
liable to account to the Company for any profit realized by any such
contract or arrangement by reason only of such director holding that office
or of the fiduciary relations thereby established, provided the director
makes a declaration or gives a general notice in accordance with the Act.
No director shall, as a director, vote in respect of any contract or
arrangement in which the director is so interested, and if the director
does so vote, such vote shall not be counted. This prohibition may at any
time or times be suspended or relaxed to any extent by a resolution of
the shareholders and shall not apply to any contract by or on behalf of the
Company to give to the directors or any of them any security for advances
or by way of indemnity.
ELECTION OF DIRECTORS
91. At the dissolution of every ordinary general meeting at which their
successors are elected, all the directors shall retire from office and be
succeeded by the directors elected at such meeting. Retiring directors
shall be eligible for re-election.
92. If at any ordinary general meeting at which an election of directors ought
to take place no such election takes place, or if no ordinary general
meeting is held in any year or period of years, the retiring directors
shall continue in office until their successors are elected.
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93. The Company may by resolution of its shareholders elect any number of
directors permitted by these Articles and may determine or alter their
qualification.
94. The Company may, by special resolution or in any other manner permitted by
statute, remove any director before the expiration of such director's
period of office and may, if desired, appoint a replacement to hold office
during such time only as the director so removed would have held office.
95. The directors may appoint any other person as a director so long as the
total number of directors does not at any time exceed the maximum number
permitted. No such appointment, except to fill a casual vacancy, shall be
effective unless two-thirds of the directors concur in it. Any casual
vacancy occurring among the directors may be filled by the directors, but
any person so chosen shall retain office only so long as the vacating
director would have retained it if the vacating director had continued as
director.
MANAGING DIRECTOR
96. The directors may appoint one or more of their body to be managing
directors of the Company, either for a fixed term or otherwise , and may
remove or dismiss them from office and appoint replacements.
97. Subject to the provisions of any contract between a managing director and
the Company, a managing director shall be subject to the same provisions as
to resignation and removal as the other directors of the Company. A
managing director who for any reason ceases to hold the office of director
shall ipso facto immediately cease to be a managing director.
98. The remuneration of a managing director shall from time to time be fixed by
the directors and may be by way of any or all of salary, commission and
participation in profits.
99. The directors may from time to time entrust to and confer upon a managing
director such of the powers exercisable under these Articles by the
directors as they think fit, and may confer such powers for such time, and
to be exercised for such objects and purposes and upon such terms and
conditions, and with such restrictions as they think expedient; and they
may confer such powers either collaterally with, or to the exclusion of,
and in substitution for, all or any of the powers of the directors in that
behalf; and may from time to time revoke, withdraw, alter or vary all or
any of such powers.
CHAIRMAN OF THE BOARD
100. The directors may elect one of their number to be Chairman and may
determine the period during which the Chairman is to hold office. The
Chairman shall perform such duties and receive such special remuneration as
the directors may provide.
<PAGE>
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PRESIDENT AND VICE-PRESIDENTS
101. The directors shall elect the President of the Company, who need not be a
director, and may determine the period for which the President is to hold
office. The President shall have general supervision of the business of the
Company and shall perform such duties as may be assigned from time to time
by the directors.
102. The directors may also elect vice-presidents, who need not be directors,
and may determine the periods for which they are to hold office. A
vice-president shall, at the request of the President or the directors and
subject to the directions of the directors, perform the duties of the
President during the absence, illness or incapacity of the President, and
shall also perform such duties as may be assigned by the President or the
directors.
SECRETARY, TREASURER AND COMPTROLLER
103. The directors shall appoint a Secretary of the Company to keep minutes of
shareholders' and directors' meetings and perform such other duties as may
be assigned by the directors. The directors may also appoint a temporary
substitute for the Secretary who shall, for the purposes of these Articles,
be deemed to be the Secretary.
104. The directors may appoint a treasurer of the Company to carry out such
duties as the directors may assign.
105. The directors may appoint a Comptroller of the Company who shall be the
principal accounting officer of the Company and shall have charge of the
Company's books of accounts and records;and shall have such other powers
and perform such other duties as may from time to time be granted or
assigned to him by the directors or, subject to the control of the
directors, by a committee of directors, or otherwise be in accordance with
the direction of the directors.
OFFICERS
106. The directors may elect or appoint such other officers of the Company,
having such powers and duties, as they think fit.
107. If the directors so decide the same person may hold more than one of the
offices provided for in these Articles.
PROCEEDINGS OF DIRECTORS
108. The directors may meet together for the dispatch of business, adjourn and
otherwise regulate their meetings and proceedings, as they think fit, and
may determine the quorum necessary for the transaction of business. Until
otherwise determined, one director who is a Canadian resident or two
directors having any residency shall constitute a quorum and may hold a
meeting.
<PAGE>
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109. If all directors of the Company entitled to attend a meeting either
generally or specifically consent, a director may participate in a meeting
of directors or of a committee of directors by means of such telephone or
other communications facilities as permit all persons participating in the
meeting to hear each other, and a director participating in such a meeting
by such means is deemed to be present at that meeting for purposes of these
Articles.
110. Meetings of directors may be held either within or without the Province of
Nova Scotia and the directors may from time to time make arrangements
relating to the time and place of holding directors' meetings, the notices
to be given for such meetings and what meetings may be held without notice.
Unless otherwise provided by such arrangements:
(1) A meeting of directors may be held at the close of every ordinary
general meeting of the Company without notice.
(2) Notice of every other directors' meeting may be given as permitted by
these Articles to each director at least 48 hours before the time
fixed for the meeting.
(3) A meeting of directors may be held without formal notice if all the
directors are present or if those absent have signified their assent
to such meeting or their consent to the business transacted at such
meeting.
111. The President or any director may at any time, and the Secretary, upon the
request of the President or any director, shall summon a meeting of the
directors to be held at the Office of the Company. The President, the
Chairman or a majority of the directors may at any time, and the Secretary,
upon the request of the President, the Chairman or a majority of the
directors shall, summon a meeting to be held elsewhere.
112. (1) Questions arising at any meeting of directors shall be decided by a
majority of votes. The chairman of the meeting may vote as a director
but shall not have a second or casting vote.
(2) At any meeting of directors the chairman shall receive and count the
vote of any director not present in person at such meeting on any
question or matter arising at such meeting whenever such absent
director has indicated by telegram, letter or other writing lodged
with the chairman of such meeting the manner in which the absent
director desires to vote on such question or matter and such question
or matter has been specifically mentioned in the notice calling the
meeting as a question or matter to be discussed or decided thereat. In
respect of any such question or matter so mentioned in such notice any
director may give to any other director a proxy authorizing such other
director to vote for such first named director at such meeting, and
the chairman of such meeting, after such proxy has been so lodged,
shall receive and count any vote given in pursuance thereof
notwithstanding the absence of the director giving such proxy.
113. If no Chairman is elected, or if at any meeting of directors the Chairman
is not present within five minutes after the time appointed for holding the
meeting, or declines to take the
<PAGE>
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chair, the President, if a director, shall preside. If the President is
not a director, is not present at such time or declines to take the chair,
a vice-president who is also a director shall preside. If no person
described above is present at such time and willing to take the chair, the
directors present shall choose some one of their number to be chairman of
the meeting.
114. A meeting of the directors at which a quorum is present shall be competent
to exercise all or any of the authorities, powers and discretions for the
time being vested in or exercisable by the directors generally.
115. The directors may delegate any of their powers to committees consisting of
such number of directors as they think fit. Any committee so formed shall
in the exercise of the powers so delegated conform to any regulations that
may be imposed on them by the directors.
116. The meetings and proceedings of any committee of directors shall be
governed by the provisions contained in these Articles for regulating the
meetings and proceedings of the directors insofar as they are applicable
and are not superseded by any regulations made by the directors.
117. All acts done at any meeting of the directors or of a committee of
directors or by any person acting as a director shall, notwithstanding that
it is afterwards discovered that there was some defect in the appointment
of the director or person so acting, or that they or any of them were
disqualified, be as valid as if every such person had been duly appointed
and was qualified to be a director.
118. A resolution in writing and signed by every director who would be entitled
to vote on the resolution at a meeting is as valid as if it were passed by
such directors at a meeting.
119. If any one or more of the directors is called upon to perform extra
services or to make any special exertions in going or residing abroad or
otherwise for any of the purposes of the Company or the business thereof,
the Company may remunerate the director or directors so doing, either by a
fixed sum or by a percentage of profits or otherwise. Such remuneration
shall be determined by the directors and may be either in addition to or in
substitution for remuneration otherwise authorized by these Articles.
REGISTERS
120. The directors shall cause to be kept at the Company's Office in accordance
with the provisions of the Act a Register of the shareholders of the
Company, a register of the holders of bonds, debentures and other
securities of the Company and a register of its directors. Branch registers
of the shareholders and of the holders of bonds, debentures and other
securities may be kept elsewhere, either within or without the Province of
Nova Scotia, in accordance with the Act.
<PAGE>
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MINUTES
121. The directors shall cause minutes to be entered in books designated for the
purpose:
(1) of all appointments of officers;
(2) of the names of directors present at each meeting of directors and of
any committees of directors;
(3) of all orders made by the directors and committees of directors; and
(4) of all resolutions and proceedings of meetings of shareholders and of
directors.
Any such minutes of any meeting of directors or of any committee of
directors or of shareholders, if purporting to be signed by the chairman of
such meeting or by the chairman of the next succeeding meeting, shall be
receivable as prima facie evidence of the matters stated in such minutes.
POWERS OF DIRECTORS
122. The management of the business of the Company is vested in the directors
who, in addition to the powers and authorities by these Articles or
otherwise expressly conferred upon them, may exercise all such powers and
do all such acts and things as may be exercised or done by the Company and
are not hereby or by statute expressly directed or required to be exercised
or done by the shareholders, but subject nevertheless to the provisions of
any statute, the Memorandum or these Articles. No modification of the
Memorandum or these Articles shall invalidate any prior act of the
directors that would have been valid if such modification had not been
made.
123. Without restricting the generality of the terms of any of these Articles
and without prejudice to the powers conferred thereby, the directors may:
(1) take such steps as they think fit to carry out any agreement or
contract made by or on behalf of the Company;
(2) pay costs, charges and expenses preliminary and incidental to the
promotion, formation, establishment, and registration of the Company;
(3) purchase or otherwise acquire for the Company any property, rights or
privileges that the Company is authorized to acquire, at such price
and generally on such terms and conditions as they think fit;
(4) pay for any property, rights or privileges acquired by, or services
rendered to the Company either wholly or partially in cash or in
shares (fully paid-up or otherwise), bonds, debentures or other
securities of the Company;
<PAGE>
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(5) subject to the Act, secure the fulfilment of any contracts or
engagements entered into by the Company by mortgaging or charging all
or any of the property of the Company and its unpaid capital for the
time being, or in such other manner as they think fit;
(6) appoint, remove or suspend at their discretion such experts, managers,
secretaries, treasurers, officers, clerks, agents and servants for
permanent, temporary or special services, as they from time to time
think fit, and determine their powers and duties and fix their
salaries or emoluments and require security in such instances and to
such amounts as they think fit;
(7) accept a surrender of shares from any shareholder insofar as the law
permits and on such terms and conditions as may be agreed;
(8) appoint any person or persons to accept and hold in trust for the
Company any property belonging to the Company, or in which it is
interested, execute and do all such deeds and things as may be
required in relation to such trust, and provide for the remuneration
of such trustee or trustees;
(9) institute, conduct, defend, compound or abandon any legal proceedings
by and against the Company, its directors or its officers or otherwise
concerning the affairs of the Company, and also compound and allow
time for payment or satisfaction of any debts due and of any claims or
demands by or against the Company;
(10) refer any claims or demands by or against the Company to arbitration
and observe and perform the awards;
(11) make and give receipts, releases and other discharges for amounts
payable to the Company and for claims and demands of the Company;
(12) determine who may exercise the borrowing powers of the Company and
sign on the Company's behalf bonds, debentures or other securities,
bills, notes, receipts, acceptances, assignments, transfers,
hypothecations, pledges, endorsements, cheques, drafts, releases,
contracts, agreements and all other instruments and documents;
(13) provide for the management of the affairs of the Company abroad in
such manner as they think fit, and in particular appoint any person to
be the attorney or agent of the Company with such powers (including
power to sub-delegate) and upon such terms as may be thought fit;
(14) invest and deal with any funds of the Company in such securities and
in such manner as they think fit; and vary or realize such
investments;
(15) subject to the Act, execute in the name and on behalf of the Company
in favour of any director or other person who may incur or be about to
incur any personal liability for the benefit of the Company such
mortgages of the Company's property, present and future, as they think
fit;
<PAGE>
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(16) give any officer or employee of the Company a commission on the
profits of any particular business or transaction or a share in the
general profits of the Company;
(17) set aside out of the profits of the Company before declaring any
dividend such amounts as they think proper as a reserve fund to meet
contingencies or provide for dividends, depreciation, repairing,
improving and maintaining any of the property of the Company and such
other purposes as the directors may in their absolute discretion think
in the interests of the Company; and invest such amounts in such
investments as they think fit, and deal with and vary such
investments, and dispose of all or any part of them for the benefit of
the Company, and divide the reserve fund into such special funds as
they think fit, with full power to employ the assets constituting the
reserve fund in the business of the Company without being bound to
keep them separate from the other assets;
(18) make, vary and repeal rules respecting the business of the Company,
its officers and employees, the shareholders of the Company or any
section or class of them;
(19) enter into all such negotiations and contracts, rescind and vary all
such contracts, and execute and do all such acts, deeds and things in
the name and on behalf of the Company as they consider expedient for
or in relation to any of the matters aforesaid or otherwise for the
purposes of the Company;
(20) provide for the management of the affairs of the Company in such
manner as they think fit.
SOLICITORS
124. The Company may employ or retain solicitors any of whom may, at the request
or on the instruction of the directors, the Chairman, the President or a
managing director, attend meetings of the directors or shareholders,
whether or not the solicitor is a shareholder or a director of the Company.
A solicitor who is also a director may nevertheless charge for services
rendered to the Company as a solicitor.
THE SEAL
125. The directors shall arrange for the safe custody of the common seal of the
Company (the "Seal"). The Seal may be affixed to any instrument in the
presence of and contemporaneously with the attesting signature of (i) any
director or officer acting within such person's authority or (ii) any
person under the authority of a resolution of the directors or a committee
thereof. For the purpose of certifying documents or proceedings the Seal
may be affixed by any director or the President, a vice-president, the
Secretary, an assistant secretary, assistant treasurer or any other officer
of the Company without the authorization of a resolution of the directors.
126. The Company may have facsimiles of the Seal which may be used
interchangeably with the Seal.
<PAGE>
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127. The Company may have for use at any place outside the Province of Nova
Scotia, as to all matters to which the corporate existence and capacity of
the Company extends, an official seal that is a facsimile of the Seal of
the Company with the addition on its face of the name of the place where it
is to be used; and the Company may by writing under its Seal authorize any
person to affix such official seal at such place to any document to which
the Company is a party.
DIVIDENDS
128. The directors may from time to time declare such dividend as they deem
proper upon shares of the Company according to the rights and restrictions
attached to any class or series of shares, and may determine the date upon
which such dividend will be payable and that it will be payable to the
persons registered as the holders of the shares on which it is declared at
the close of business upon a record date. No transfer of such shares
registered after the record date shall pass any right to the dividend so
declared.
129. Dividends may be paid as permitted by law and, without limitation, may be
paid out of the profits, retained earnings or contributed surplus of the
Company. No interest shall be payable on any dividend except insofar as the
rights attached to any class or series of shares provide otherwise.
130. The declaration of the directors as to the amount of the profits, retained
earnings or contributed surplus of the Company shall be conclusive.
131. The directors may from time to time pay to the shareholders such interim
dividends as in their judgment the position of the Company justifies.
132. Subject to these Articles and the rights and restrictions attached to any
class or series of shares, dividends may be declared and paid to the
shareholders in proportion to the amount of capital paid-up on the shares
(not including any capital paid-up bearing interest) held by them
respectively.
133. The directors may deduct from the dividends payable to any shareholder
amounts due and payable by the shareholder to the Company on account of
calls, instalments or otherwise, and may apply the same in or towards
satisfaction of such amounts so due and payable.
134. The directors may retain any dividends on which the Company has a lien, and
may apply the same in or towards satisfaction of the debts, liabilities or
engagements in respect of which the lien exists.
135. The directors may retain the dividends payable upon shares to which a
person is entitled or entitled to transfer upon the death or bankruptcy of
a shareholder or in any way other than by allotment or transfer, until such
person has become registered as the holder of such shares or has duly
transferred such shares.
<PAGE>
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136. When the directors declare a dividend on a class or series of shares and
also make a call on such shares payable on or before the date on which the
dividend is payable, the directors may retain all or part of the dividend
and set off the amount retained against the call.
137. The directors may declare that a dividend be paid by the distribution of
cash, paid-up shares (at par or at a premium), debentures, bonds or other
securities of the Company or of any other company or any other specific
assets held or to be acquired by the Company or in any one or more of such
ways.
138. The directors may settle any difficulty that may arise in regard to the
distribution of a dividend as they think expedient, and in particular
without restricting the generality of the foregoing may issue fractional
certificates, may fix the value for distribution of any specific assets,
may determine that cash payments will be made to any shareholders upon the
footing of the value so fixed or that fractions may be disregarded in order
to adjust the rights of all parties, and may vest cash or specific assets
in trustees upon such trusts for the persons entitled to the dividend as
may seem expedient to the directors.
139. Any person registered as a joint holder of any share may give effectual
receipts for all dividends and payments on account of dividends in respect
of such share.
140. Unless otherwise determined by the directors, any dividend may be paid by a
cheque or warrant delivered to or sent through the post to the registered
address of the shareholder entitled, or, when there are joint holders, to
the registered address of that one whose name stands first on the register
for the shares jointly held. Every cheque or warrant so delivered or sent
shall be made payable to the order of the person to whom it is delivered or
sent. The mailing or other transmission to a shareholder at the
shareholder's registered address (or, in the case of joint shareholders at
the address of the holder whose name stands first on the register) of a
cheque payable to the order of the person to whom it is addressed for the
amount of any dividend payable in cash after the deduction of any tax which
the Company has properly withheld, shall discharge the Company's liability
for the dividend unless the cheque is not paid on due presentation. If any
cheque for a dividend payable in cash is not received, the Company shall
issue to the shareholder a replacement cheque for the same amount on such
terms as to indemnity and evidence of non-receipt as the directors may
impose. No shareholder may recover by action or other legal process against
the Company any dividend represented by a cheque that has not been duly
presented to a banker of the Company for payment or that otherwise remains
unclaimed for 6 years from the date on which it was payable.
ACCOUNTS
141. The directors shall cause proper books of account to be kept of the amounts
received and expended by the Company, the matters in respect of which such
receipts and expenditures take place, all sales and purchases of goods by
the Company, and the assets, credits and liabilities of the Company.
<PAGE>
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142. The books of account shall be kept at the head office of the Company or at
such other place or places as the directors may direct.
143. The directors shall from time to time determine whether and to what extent
and at what times and places and under what conditions the accounts and
books of the Company or any of them shall be open to inspection of the
shareholders, and no shareholder shall have any right to inspect any
account or book or document of the Company except as conferred by statute
or authorized by the directors or a resolution of the shareholders.
144. At the ordinary general meeting in every year the directors shall lay
before the Company such financial statements and reports in connection
therewith as may be required by the Act or other applicable statute or
regulation thereunder and shall distribute copies thereof at such times and
to such persons as may be required by statute or regulation.
AUDITORS AND AUDIT
145. Except in respect of a financial year for which the Company is exempt from
audit requirements in the Act, the Company shall at each ordinary general
meeting appoint an auditor or auditors to hold office until the next
ordinary general meeting. If at any general meeting at which the
appointment of an auditor or auditors is to take place and no such
appointment takes place, or if no ordinary general meeting is held in any
year or period of years, the directors shall appoint an auditor or auditors
to hold office until the next ordinary general meeting.
146. The first auditors of the Company may be appointed by the directors at any
time before the first ordinary general meeting and the auditors so
appointed shall hold office until such meeting unless previously removed by
a resolution of the shareholders, in which event the shareholders may
appoint auditors.
147. The directors may fill any casual vacancy in the office of the auditor but
while any such vacancy continues the surviving or continuing auditor or
auditors, if any, may act.
148. The Company may appoint as auditor any person, including a shareholder, not
disqualified by statute.
149. An auditor may be removed or replaced in the circumstances and in the
manner specified in the Act.
150. The remuneration of the auditors shall be fixed by the shareholders, or by
the directors pursuant to authorization given by the shareholders, except
that the remuneration of an auditor appointed to fill a casual vacancy may
be fixed by the directors.
151. The auditors shall conduct such audit as may be required by the Act and
their report, if any, shall be dealt with by the Company as required by the
Act.
<PAGE>
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NOTICES
152. A notice (including any communication or document) shall be
sufficiently given, delivered or served by the Company upon a
shareholder, director, officer or auditor by personal delivery at such
person's registered address (or, in the case of a director, officer or
auditor, last known address) or by prepaid mail, telegraph, telex,
facsimile machine or other electronic means of communication addressed
to such person at such address.
153. Shareholders having no registered address shall not be entitled to receive
notice.
154. All notices with respect to registered shares to which persons are
jointly entitled may be sufficiently given to all joint holders thereof
by notice given to whichever of such persons is named first in the
Register for such shares.
155. Any notice sent by mail shall be deemed to be given, delivered or
served on the earlier of actual receipt and the third business day
following that upon which it is mailed, and in proving such service it
shall be sufficient to prove that the notice was properly addressed and
mailed with the postage prepaid thereon. Any notice given by electronic
means of communication shall be deemed to be given when entered into
the appropriate transmitting device for transmission. A certificate in
writing signed on behalf of the Company that the notice was so
addressed and mailed or transmitted shall be conclusive evidence
thereof.
156. Every person who by operation of law, transfer or other means
whatsoever becomes entitled to any share shall be bound by every notice
in respect of such share that prior to such person's name and address
being entered on the Register was duly served in the manner
hereinbefore provided upon the person from whom such person derived
title to such share.
157. Any notice delivered, sent or transmitted to the registered address of
any shareholder pursuant to these Articles, shall, notwithstanding that
such shareholder is then deceased and that the Company has notice
thereof, be deemed to have been served in respect of any registered
shares, whether held by such deceased shareholder solely or jointly
with other persons, until some other person is registered as the holder
or joint holder thereof, and such service shall for all purposes of
these Articles be deemed a sufficient service of such notice on the
heirs, executors or administrators of the deceased shareholder and all
joint holders of such shares.
158. Any notice may bear the name or signature, manual or reproduced, of the
person giving the notice written or printed.
159. When a given number of days' notice or notice extending over any other
period is required to be given, the day of service and the day upon
which such notice expires shall not, unless it is otherwise provided,
be counted in such number of days or other period.
<PAGE>
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INDEMNITY
160. Every director or officer, former director or officer, or person who acts
or acted at the Company's request, as a director or officer of the
Company, a body corporate, partnership or other association of
which the Company is or was a shareholder, partner, member or creditor,
and the heirs and legal representatives of such person, in the absence of
any dishonesty on the part of such person, shall be indemnified by the
Company against, and it shall be the duty of the directors out of the
funds of the Company to pay, all costs, losses and expenses, including an
amount paid to settle an action or claim or satisfy a judgment, that such
director, officer or person may incur or become liable to pay in respect
of any claim made against such person or civil, criminal or administrative
action or proceeding to which such person is made a party by reason of
being or having been a director or officer of the Company or such body
corporate, partnership or other association, whether the Company is a
claimant or party to such action or proceeding or otherwise; and the
amount for which such indemnity is proved shall immediately attach as a
lien on the property of the Company and have priority as against the
shareholders over all other claims.
161. No director or officer, former director or officer, or person who acts or
acted at the Company's request, as a director or officer of the Company,
a body corporate, partnership or other association of which the Company is
or was a shareholder, partner, member or creditor, in the absence of any
dishonesty on such person's part, shall be liable for the acts, receipts,
neglects or defaults of any other director, officer or such person, or for
joining in any receipt or other act for conformity, or for any loss,
damage or expense happening to the Company through the insufficiency or
deficiency of title to any property acquired for or on behalf of the
Company, or through the insufficiency or deficiency of any security in or
upon which any of the funds of the Company are invested, or for any loss
or damage arising from the bankruptcy, insolvency or tortious acts of any
person with whom any funds, securities or effects are deposited, or for
any loss occasioned by error of judgment or oversight on the part of
such person, or for any other loss, damage or misfortune whatsoever which
happens in the execution of the duties of such person or in relation
thereto.
REMINDERS
162. The directors shall comply with the following provisions of the Act or
the Corporations Registration Act (Nova Scotia) where indicated:
(1) Keep a current register of shareholders (Section 42).
(2) Keep a current register of directors, officers and managers,
send to the Registrar a copy thereof and notice of all changes
therein (Section 98).
(3) Keep a current register of holders of bonds, debentures and other
securities (Section 111 and Third Schedule).
(4) Call a general meeting every year within the proper time
(Section 83). Meetings must be held not later than 15 months
after the preceding general meeting.
<PAGE>
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(5) Send to the Registrar copies of all special resolutions (Section
88).
(6) Send to the Registrar notice of the address of the Company's Office
and of all changes in such
address (Section 79).
(7) Keep proper minutes of all shareholders' meetings and
directors' meetings in the Company's minute book kept at the
Company's Office (Sections 89 and 90).
(8) Obtain a certificate under the Corporations Registration Act
(Nova Scotia) as soon as business is commenced.
(9) Send notice of recognized agent to the Registrar under the
Corporations Registration Act (Nova Scotia).
Name of Subscriber
/s/ Charles S. Reagh
Dated at Halifax, Nova Scotia the 5th day of November, 1999.
Witness to above signature:
/s/ Leanne M. Thomas
- -----------------------------------
Halifax, Nova Scotia
<PAGE>
Exhibit 4.3
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- --------------------------------------------------------------------------------
INDENTURE
AMONG
CHEVRON CAPITAL CORPORATION, As Issuer
CHEVRON CORPORATION, As Guarantor
and
THE CHASE MANHATTAN BANK, As Trustee
Dated as of __________, 1999
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- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined.................................2
Attributable Debt...........................................2
Board of Directors..........................................2
Business Day................................................2
Certified Resolution........................................3
Commission..................................................3
Company.....................................................3
Consolidated Adjusted Tangible Assets.......................3
Depository..................................................3
Event of Default............................................3
Executive Committee.........................................3
Global Security.............................................4
Guarantee...................................................4
Guarantor...................................................4
Indenture...................................................4
Interest Payment Date.......................................4
Officers' Certificate.......................................4
Opinion of Counsel..........................................4
Original Issue Discount Security............................4
Outstanding.................................................5
Paying Agent................................................5
Periodic Offering...........................................5
Person......................................................5
Principal Property..........................................5
Record Date.................................................6
Redemption Date.............................................6
Redemption Price............................................6
Register....................................................6
Responsible Officer.........................................6
Restricted Subsidiary.......................................6
Security or Securities......................................6
Securityholder; Holder......................................6
Series......................................................7
Stated Maturity.............................................7
Subsidiary..................................................7
Supplemental Indenture......................................7
Trustee.....................................................7
Trust Indenture Act of 1939.................................7
United States Dollars.......................................7
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount, Series, Execution, Authentication and
Delivery of Securities...............................7
Section 2.02. Form of Securities and Trustee's Certificate
of Authentication...................................11
<PAGE>
Section 2.03. Denominations; Payment of Interest on Securities.....11
Section 2.04. Execution of Securities..............................12
Section 2.05. Registration, Transfer and Exchange of Securities....13
Section 2.06. Temporary Securities.................................14
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities......14
Section 2.08. Cancellation and Destruction of Surrendered
Securities..........................................14
Section 2.09. Securities in Global Form; Depositories..............15
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities.............................16
Section 3.02. Notice of Redemption.................................16
Section 3.03. Selection of Securities for Redemption...............16
Section 3.04. Partial Redemption of Registered Security............16
Section 3.05. Effect of Redemption.................................17
ARTICLE FOUR
THE GUARANTEE BY AND COVENANTS OF THE GUARANTOR
Section 4.01. Guarantee............................................17
Section 4.02. Proceedings Against the Guarantor....................19
Section 4.03. Guarantee for Benefit of Securityholders.............19
Section 4.04. Corporate Existence of Guarantor; Consolidation,
Merger, Sale or Transfer............................19
Section 4.05. Securities to Be Secured in Certain Events...........19
Section 4.06. Limitations on Liens.................................20
Section 4.07. Limitation on Sale and Leaseback.....................21
Section 4.08. Notice of Default....................................22
Section 4.09. Waiver of Certain Covenants of Guarantor.............22
<PAGE>
ARTICLE FIVE
SECURITYHOLDERS' LISTS
Section 5.01. Company to Furnish Trustee Information As to
the Names and Addresses of Securityholders..........22
Section 5.02. Preservation of Information; Communication to
Securityholders.....................................22
Section 5.03. Reports by Company and Guarantor.....................23
Section 5.04. Reports by Trustee...................................24
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration, Waiver of Default
and Restoration of Position and Rights..............25
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount
Due on Securities on Default in Payment of
Interest or Principal...............................27
Section 6.03. Trustee May File Proofs of Claim.....................28
Section 6.04. Trustee May Enforce Claims Without Possession
of Securities.......................................28
Section 6.05. Application of Moneys Collected By Trustee...........28
Section 6.06. Limitation on Suits By Holders of Securities.........29
Section 6.07. Rights and Remedies Cumulative.......................29
Section 6.08. Delay or Omission Not Waiver.........................30
Section 6.09. Control By Holders; Waiver of Past Defaults..........30
Section 6.10. Trustee to Give Notice of Defaults Known to It,
But May Withhold in Certain Circumstances...........30
Section 6.11. Requirement of an Undertaking to Pay Costs in
Certain Suits Under the Indenture or Against
the Trustee.........................................31
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee.......31
Section 7.02. Certain Rights of Trustee............................32
Section 7.03. Trustee Not Responsible for Recitals or Application
of Proceeds.........................................33
Section 7.04. Trustee May Own Securities...........................33
Section 7.05. Moneys Received by Trustee to be Held in Trust.......33
<PAGE>
Section 7.06. Trustee Entitled to Compensation, Reimbursement
and Indemnity........................................33
Section 7.07. Right of Trustee to Rely on Officers' Certificate
Where No Other Evidence Specifically Prescribed.....33
Section 7.08. Disqualification; Conflicting Interest...............34
Section 7.09. Requirements for Eligibility of Trustee..............39
Section 7.10. Resignation and Removal of Trustee; Appointment of
Successor...........................................39
Section 7.11. Acceptance of Appointment by Successor Trustee.......40
Section 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business..............................40
Section 7.13. Preferential Collection of Claims Against Company
or Guarantor........................................41
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders................44
Section 8.02. Proof of Execution of Instruments and of Holding
of Securities.......................................44
Section 8.03. Who May be Deemed Owners of Securities...............45
Section 8.04. Securities Owned by the Company, the Guarantor
or Controlled or Controlling Persons Disregarded
for Certain Purposes................................45
Section 8.05. Instruments Executed by Securityholders Bind
Future Holders......................................45
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for Which Meetings May be Called............46
Section 9.02. Manner of Calling Meetings...........................46
Section 9.03. Call of Meeting by Company, the Guarantor or
Securityholders.....................................46
Section 9.04. Who May Attend and Vote at Meetings..................47
Section 9.05. Regulations May be Made by Trustee; Conduct of
the Meeting; Voting Rights; Adjournment.............47
Section 9.06. Manner of Voting at Meetings and Record to be Kept...47
Section 9.07. Exercise of Rights to Trustee and Securityholders
Not to be Hindered or Delayed.......................48
<PAGE>
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered Into Without Consent of Securityholders..48
Section 10.02. Modification of Indenture with Consent of Holders
of Securities....................................49
Section 10.03. Effect of Supplemental Indentures...................50
Section 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures..........................50
ARTICLE ELEVEN
PARTICULAR COVENANTS OF THE COMPANY
Section 11.01. Payment of Principal of and Interest on
Securities.........................................50
Section 11.02. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange and Payment
of Securities......................................50
Section 11.03. Assignment; Substitution............................51
Section 11.04. Appointment to Fill a Vacancy in the Office
of Trustee.........................................51
Section 11.05. Duties of Paying Agent..............................51
ARTICLE TWELVE
DISCHARGE; DEFEASANCE
Section 12.01. Discharge of Indenture..............................52
Section 12.02. Discharge of Liability on Securities................52
Section 12.03. Discharge of Certain Covenants and Other
Obligations........................................53
Section 12.04. Discharge of Certain Obligations Upon Deposit
of Money or Securities with Trustee................53
Section 12.05. Unclaimed Moneys....................................54
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Incorporators, Stockholders, Officers and Directors
of Company and Guarantor Exempt From
Individual Liability...............................54
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of the Company or the
Guarantor Bound by Indenture.......................55
<PAGE>
Section 14.02. Notices; Effectiveness..............................55
Section 14.03. Compliance Certificates and Opinions................56
Section 14.04. Days on Which Payment to be Made, Notice
Given or Other Action Taken.......................57
Section 14.05. Provisions Required by Trust Indenture Act of 1939
to Control........................................57
Section 14.06. Governing Law.......................................57
Section 14.07. Provisions of the Indenture and Securities
for the Sole Benefit of the Parties and the
Securityholders...................................57
Section 14.08. Indenture May be Executed in Counterparts...........57
SIGNATURES...................................................................57
<PAGE>
TABLE SHOWING REFLECTION IN THIS INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939
--------------------------------
Section Section
of Act of Indenture
----------- -----------------
310(a)(1) .................................................. 7.09
310(a)(2) .................................................. 7.09
310(a)(3) .................................................. Inapplicable
310(a)(4) .................................................. Inapplicable
310(a)(5) .................................................. 7.09
310(b) ..................................................... 7.08, 7.10
310(c) ..................................................... Inapplicable
311(a) ..................................................... 7.13(a), 7.13(c)
311(b) ..................................................... 7.13(b), 7.13(c)
311(c) ................ ................................... Inapplicable
312(a) ..................................................... 5.01, 5.02(a)
312(b) ..................................................... 5.02(b)
312(c) ..................................................... 5.02(c)
313(a) ..................................................... 5.04(a)
313(b)(1) .................................................. Inapplicable
313(b)(2) .................................................. 5.04(b)
313(c) ..................................................... 5.04(c)
313(d) ..................................................... 5.04(d)
314(a)(1) .................................................. 5.03(a)
314(a)(2) .................................................. 5.03(b)
314(a)(3) .................................................. 5.03(c)
314(a)(4) .................................................. 5.03(d)
314(b) ..................................................... Inapplicable
314(c)(1) .................................................. 14.03
314(c)(2) .................................................. 14.03
314(c)(3) .................................................. 14.03
314(d) ..................................................... Inapplicable
314(e) ..................................................... 14.03
314(f) ..................................................... 14.03
315(a) ..................................................... 7.01
315(b) ..................................................... 6.10
315(c) ..................................................... 7.01
315(d) ..................................................... 7.01
315(e) ..................................................... 6.11
316(a)(1) .................................................. 6.09
316(a)(2) .................................................. Omitted
316(b) ..................................................... 6.06
316(c) ..................................................... 6.09
317(a) ..................................................... 6.02, 6.03
317(b) ..................................................... 11.05(a)
318(a) ..................................................... 14.05
<PAGE>
INDENTURE
THIS INDENTURE, dated as of __________, 1999, among CHEVRON CAPITAL
CORPORATION, a Delaware corporation (the "Company"), CHEVRON CORPORATION, a
Delaware corporation (the "Guarantor") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as Trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, execution and
delivery, from time to time, of its unsecured evidences of indebtedness
(hereinafter referred to as the "Securities"), without limit as to principal
amount, issuable in one or more Series, the amount and terms of each such Series
to be determined as hereinafter provided; and, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and its guarantee of the Securities as provided herein;
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects been
duly authorized; and
WHEREAS, all acts and things necessary to make the guarantee of the
Securities, as in this Indenture provided, the valid, binding and legal
obligations of the Guarantor, and to constitute each such guarantee a valid
guarantee and agreement according to its terms, have been done and performed,
and the execution by the Guarantor of this Indenture has in all respects been
duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are to be issued, authenticated and delivered, and in consideration
of the premises and of the purchase and acceptance of the Securities by the
Holders thereof, the Company and the Guarantor covenant and agree with each
other and with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Securities or of any Series thereof,
as follows:
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<PAGE>
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act of 1939, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall
have the meanings assigned to them and all computations herein provided
for shall be made, in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"
shall mean such principles as they exist at the date of applicability
thereof; 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.
Attributable Debt
The term "Attributable Debt" for a sale-leaseback transaction means the
lesser of (a) the fair value of the property subject to the transaction (as
determined by the Board of Directors of the Guarantor) or (b) the present value
of rent for the remaining term of the lease. Rent shall be discounted to present
value at the actual percentage rate inherent in such lease as determined in good
faith by the Guarantor, compounded semiannually. Rent is the lesser of (a) rent
for the remaining term of the lease assuming it is not terminated or (b) rent
from the date of determination until the first possible termination date plus
the termination payment then due, if any. The remaining term of a lease includes
any period for which the lease has been extended. Rent does not include (i)
amounts for maintenance, repairs, insurance, taxes, assessments and similar
charges or (ii) contingent rent, such as that based on sales. Rent may be
reduced by rent that any sublessee must pay from the date of determination for
all or part of the same property. For the purpose of any limitation contained in
this Indenture, there shall not be deemed to be any Attributable Debt with
respect to a sale-leaseback arrangement if the Guarantor or a Restricted
Subsidiary would be entitled pursuant to the provisions contained in Section
4.06 to issue, assume or guarantee "Debt" (as defined in Section 4.06) secured
by a lien on the property involved in such arrangement without equally and
ratably securing the Securities or the Guarantees.
Board of Directors
The term "Board of Directors" when used with reference to the Company
or the Guarantor shall mean the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee of such Board of
Directors.
Business Day
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City of San Francisco and The City of New York is neither
a legal holiday nor a day on which banking institutions are authorized by law or
regulation to close.
2
<PAGE>
Certified Resolution
The term "Certified Resolution" shall mean a copy of a resolution of
the Board of Directors of the Company certified by the Secretary or by an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification.
Commission
The term "Commission" shall mean 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
Indenture such Commission is not existing and performing the duties theretofore
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
Company
The term "Company" shall mean Chevron Capital Corporation, a Delaware
corporation, until a successor corporation shall have become such pursuant to
the applicable provisions hereof, and thereafter "Company" shall mean such
successor corporation.
Consolidated Adjusted Tangible Assets
The term "Consolidated Adjusted Tangible Assets" shall mean the
consolidated total assets of the Guarantor and its subsidiaries as reflected in
the Guarantor's most recent consolidated balance sheet prepared in accordance
with the Guarantor's accounting policies and generally accepted accounting
principles, less (i) goodwill, trademarks, trade names, patents, unamortized
debt discount and expense, and other deferred charges, (ii) total current
liabilities except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases,
(iii) deferred credits and other noncurrent obligations (including minority
interests in consolidated subsidiaries and reserves -- employee annuity plans
and other reserves which may hereafter be defined in the Guarantor's accounting
policies).
Depository
The term "Depository" shall mean, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Company pursuant to
Section 2.01 of this Indenture until a successor Depository shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter the
term "Depository" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more than one such Person, "Depository"
as used with respect to the Securities of any such Series shall mean the
Depository with respect to the Securities of that Series.
Event of Default
The term "Event of Default" with respect to Securities of any Series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the securities of such Series as permitted by
Section 2.01. An Event of Default shall "exist" if an Event of Default shall
have occurred and be continuing.
Executive Committee
The term "Executive Committee" shall mean the Executive Committee of
the Guarantor as such committee may from time to time be established and
constituted pursuant to the provisions of the By-Laws of the Guarantor.
3
<PAGE>
Global Security
The term "Global Security" shall mean a Security evidencing all or a
portion of a Series of Securities, issued under this Indenture and delivered to
the Depository for such Series in accordance with Section 2.09 of this
Indenture, and bearing the legend prescribed in such Section 2.09.
Guarantee
The term "Guarantee" shall mean the guarantee of the Company's
obligations under the Securities by the Guarantor as provided in Article Four of
this Indenture.
Guarantor
The term "Guarantor" shall mean Chevron Corporation, a Delaware
corporation, until a successor corporation shall have become such pursuant to
the applicable provisions hereof, and thereafter "Guarantor" shall mean such
successor corporation.
Indenture
The term "Indenture" shall mean this instrument as originally executed,
or as it may from time to time be supplemented, modified or amended, as provided
herein, and shall include the form and terms of particular Series of Securities
established as contemplated by Section 2.01 and 2.02.
Interest Payment Date
The term "Interest Payment Date" when used with respect to any Security
means the Stated Maturity of an installment of interest on such Security.
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate, in the case
of the Company, signed by the President, any Vice-President, the Treasurer, any
Deputy Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and, in the case of the Guarantor, by the Chairman of
the Board of Directors, any Vice-Chairman of the Board of Directors or any
Vice-President, the Treasurer, any Deputy Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Guarantor, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 14.03, if and to the extent required by the provisions of such Section.
Opinion of Counsel
The term "Opinion of Counsel" shall mean a written opinion of counsel
who may be counsel to the Company or to the Guarantor. Each such opinion shall
include the statements provided for in Section 14.03, if and to the extent
required by the provisions of such Section.
Original Issue Discount Security
The term "Original Issue Discount Security" shall mean (a) any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or (b) any other Security which for United States Federal income
tax purposes would be considered an original issue discount security.
4
<PAGE>
Outstanding
The term "Outstanding" when used with reference to Securities shall,
subject to the provisions of Section 8.04, mean, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities for the payment or redemption of which moneys
in the necessary amount have been theretofore deposited with the
Trustee or with any Paying Agent (other than the Company or Guarantor)
in trust for the Holders of such Securities, provided that if such
Securities are to be redeemed, notice of such redemption has been duly
given as provided in Article Three hereof, or provision therefor
satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other
Securities shall have been authenticated and delivered under this
Indenture; and
(d) Securities alleged to have been destroyed, lost or stolen
which have been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination as if a declaration of acceleration of the maturity
thereof pursuant to Section 6.01 had been made.
Paying Agent
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of and any interest and premium on any Securities on behalf of
the Company.
Periodic Offering
The term "Periodic Offering" means an offering of Securities of a
Series, from time to time, the specific terms of which (including without
limitation, the rate or rates of interest, if any, thereon or any methods of
calculating such, the maturity date or dates thereof and any redemption
provisions with respect thereto) are to be determined by the Company or its
agents upon the issuance of such Series of Securities.
Person
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
Principal Property
The term "Principal Property" means any oil or gas producing property
located in the United States, onshore or offshore, or any refinery or
manufacturing plant located in the United States in each case now owned or
hereafter acquired by the Guarantor or a Restricted Subsidiary, except any oil
or gas producing property, refinery or plant that in the opinion of the Board of
Directors of the Guarantor is not of material importance to the total business
conducted by the Guarantor and its consolidated Subsidiaries.
5
<PAGE>
Record Date
The term "Record Date" for the interest payable on any Interest Payment
Date on any Series of Securities shall mean the date specified as such in the
Securities of such Series.
Redemption Date
The term "Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
Redemption Price
The term "Redemption Price" when used with respect to any Security to
be redeemed means the price at which it is to be redeemed pursuant to this
Indenture. It includes any applicable premium but does not include installments
of interest whose Stated Maturity is on or before the Redemption Date.
Register
The term "Register" shall mean the books for the registration and
transfer of Securities which books are kept by the Trustee pursuant to Section
2.05.
Responsible Officer
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of such person's knowledge
of and familiarity with the particular subject.
Restricted Subsidiary
The term "Restricted Subsidiary" means any Subsidiary that has
substantially all of its assets located in the United States of America and
which owns a Principal Property and in which the Guarantor's direct or indirect
capital investment together with the outstanding balance of (a) any loans and
advances made to such Subsidiary by the Guarantor or any other Subsidiary and
(b) any debt of such Subsidiary guaranteed by the Guarantor or any other
Subsidiary exceed $100,000,000.
Security or Securities
The terms "Security" or "Securities" shall mean any security or
securities of the Company without regard to Series, authenticated and delivered
under this Indenture.
Securityholder; Holder
The terms "Securityholder" or "Holder", whenever employed herein with
respect to a Security, shall mean the Person in whose name such Security shall
be registered on the Register.
Series
The term "Series" shall mean an issue of Securities under this
Indenture.
6
<PAGE>
Stated Maturity
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon means the date specified in such as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
Subsidiary
The term "Subsidiary" means at any given time any corporation at least
a majority of the outstanding securities of which having ordinary voting power
(other than securities having such power only by reason of the happening of a
contingency) shall at such time be owned by the Guarantor or by one or more
Subsidiaries or by the Guarantor and one or more Subsidiaries.
Supplemental Indenture
The term "Supplemental Indenture" shall mean an indenture supplemental
hereto as such supplemental indenture may be originally executed, or as it may
from time to time be supplemented, modified or amended, as provided herein and
therein.
Trustee
The term "Trustee" shall mean The Chase Manhattan Bank, a New York
banking corporation, until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee" shall
mean such successor Trustee.
Trust Indenture Act of 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Indenture.
United States Dollars
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount, Series, Execution, Authentication and Delivery of
Securities. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The Securities
may be issued in one or more Series.
(A) The following terms and provisions of each Series of Securities
shall be established by or pursuant to a resolution of the Board of Directors of
the Company and set forth in either a Certified Resolution or a Supplemental
Indenture:
(1) the designation of the Series of Securities (which shall
distinguish the Securities of such Series from all other Series of
Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Securities which may be executed, authenticated
and delivered under this Indenture; provided, however, that nothing
contained in this Section or elsewhere in this Indenture or
7
<PAGE>
or in the Securities or in such Certified Resolution or in a Supplemental
Indenture is intended to or shall limit execution by the Company or
authentication and delivery by the Trustee of Securities under the
circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.02, 3.04 and
10.04,
(3) the currency or currencies in which principal of and
interest and any premium on such Series of Securities shall be payable
(if other than in United States Dollars),
(4) the Stated Maturity for payment of principal of such
Series of Securities and any sinking fund or analogous provisions,
(5) the rate or rates at which such Series of Securities shall
bear interest or the method of calculating such rate or rates of
interest and the Interest Payment Dates for such Series of Securities,
(6) the place or places where such Series of Securities may be
presented for payment and for the other purposes provided in Section
11.02,
(7) any Redemption Price or Prices, the Redemption Date or
Dates and other applicable redemption or repurchase provisions for such
Series of Securities,
(8) whether such Series of Securities shall be issuable as one
or more Global Securities and the form of such Series of Securities,
(9) if the Securities of such Series shall be issued in whole
or in part as one or more Global Securities, the Depository for such
Global Security or Securities and any additional terms and conditions
relating to such Global Securities not set forth in this Indenture,
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which such Series of Securities
shall be issuable,
(11) the date from which interest on such Series of Securities
shall accrue,
(12) the basis upon which interest on such Series of
Securities shall be computed (if other than on the basis of a 360-day
year of twelve 30-day months),
(13) if other than the principal amount thereof, the portion
of the principal amount of such Series of Securities which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01,
(14) the Person or Persons who shall be registrar for such
Series of Securities, and the place or places where the Register of
such Series of Securities shall be kept,
(15) any additional events of default with respect to the
Securities of a particular Series not set forth herein,
(16) any additional covenants of the Guarantor or the Company
with respect to the Securities of a particular Series not set forth
herein,
(17) the terms and conditions, if any, upon which any
Securities of such Series may or shall be converted into other
instruments or other forms of property and
8
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(18) any other terms of such Series of Securities (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one Series shall be substantially identical
except that any Series may have serial maturities and different interest rates
for different maturities and except as to denomination and the differences
herein specified between Global Securities and Securities issued in definitive
form and except as may otherwise be provided in or pursuant to the Certified
Resolution or Supplemental Indenture relating to such Series of Securities. All
Securities of any one Series need not be issued at the same time, and, unless
otherwise provided in or pursuant to the Certified Resolution or Supplemental
Indenture relating to such Series, a Series may be reopened for issuances of
additional Securities of such Series.
(B) At any time and from time to time after the execution and delivery
of this Indenture, the Company and the Guarantor may deliver any Series of
Securities executed by the Company to the Trustee for authentication by it, and
the Trustee shall thereupon authenticate and deliver said Securities (or if only
a single Global Security, such Global Security) to or upon the written order of
the Company, signed by an officer of the Company and an officer of the
Guarantor, without any further corporate action by the Company or the Guarantor.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities and except as hereinafter
provided with respect to a Series of Securities subject to a Periodic Offering,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(1) each Certified Resolution relating to such Series of Securities,
(2) an executed Supplemental Indenture, if any, relating to
such Series of Securities,
(3) an Opinion of Counsel to the effect that:
(a) the terms and form of such Securities have been established
as permitted by Sections 2.01 and 2.02 in conformity with the
provisions of this Indenture;
(b) such Securities, when executed and issued by the
Company and authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company,
except as any rights thereunder may be limited by the effect
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which
have held that certain covenants and provisions of agreements
are unenforceable where the breach of such covenants or
provisions imposes restrictions or burdens upon a borrower,
and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement
of such covenants or provisions under the circumstances would
have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of
California statutes and rules of law which cannot be waived
prospectively by a borrower, and
(c) the Company has complied with all applicable
Federal laws and requirements in respect of the execution and
delivery of such Securities.
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With respect to a Series of Securities subject to a Periodic Offering, the
Trustee shall be entitled to receive, and, subject to Section 7.01, shall be
fully protected in relying upon the documents described in the foregoing
subsections (1), (2) and (3) of this Section 2.01(B); provided, that (i) the
Certified Resolution may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery, (ii) the Trustee
shall authenticate and deliver Securities of such Series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount, if any, established for such Series, pursuant to such
Certified Resolution or pursuant to such procedures as may be specified from
time to time by a Certified Resolution, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates or the method or methods of
calculating such and any other terms of the Securities of such Series shall be
determined by the Certified Resolution or pursuant to such procedures, (iv) if
provided for in such procedures, such Certified Resolution may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing and (v) the Trustee shall be entitled to receive
an Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such Series and that the opinions described in
the foregoing subsections (a) and (b) of this Section 2.01 may be to the effect
that:
(x) the form of the Securities of such Series has been duly
authorized by the Company and has been established in conformity with
the provisions of this Indenture and that, when the terms of such
Securities shall have been established pursuant to a Certified
Resolution or pursuant to such procedures as may be specified from time
to time by a Certified Resolution, such terms will have been duly
authorized by the Company and will have been established in conformity
with the provisions of this Indenture and
(y) Securities of such Series, when executed and issued by the
Company and completed, authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject to any
conditions specified in such Opinion of Counsel and when paid for, all
as contemplated by and in accordance with the Certified Resolution or
specified procedures, as the case may be, will constitute valid and
binding obligations of the Company, except as any rights thereunder may
be limited by the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally; the rules
governing the availability of specific performance, injunctive relief
or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at law;
the effect of applicable court decisions invoking statutes or
principles of equity, which have held that certain covenants and
provisions of agreements are unenforceable where the breach of such
covenants or provisions imposes restrictions or burdens upon a
borrower, and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement of such
covenants or provisions under the circumstances would have violated the
creditor's covenants of good faith and fair dealing implied under
California law; and the effect of California statutes and rules of law
which cannot be waived prospectively by a borrower.
With respect to Securities of a Series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any such Securities,
the form and terms thereof and the valid and binding effect thereof, upon the
Opinion of Counsel and other documents delivered pursuant to this Section 2.01
in connection with the first authentication of Securities of such Series unless
and until such Opinion of Counsel or other documents shall have been superseded
or revoked. In connection with the authentication and delivery of Securities of
a Series subject to a Periodic Offering, the Trustee shall be entitled to assume
that the instructions of the Company to authenticate and deliver such Securities
do not violate any rules, regulations or orders of any governmental agency
having jurisdiction over the Company.
Each Security shall be dated the date of its authentication.
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Section 2.02. Form of Securities and Trustee's Certificate of
Authentication. The Securities of each Series shall be substantially of the
tenor and purport as shall be authorized by the related Certified Resolution or
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements thereon as the
Board of Directors of the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities of such
Series may be listed, or to conform to usage.
The definitive Securities and each Global Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
executions thereof.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated
herein, referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By _________________________________
Authorized Officer
Section 2.03. Denominations; Payment of Interest on Securities. The
Securities of each Series shall be issued as fully registered Securities without
coupons (including as one or more Global Securities) and in denominations all as
shall be specified as contemplated by Section 2.01. In the absence of such
provisions with respect to the Securities of any Series, the Securities of such
Series (other than any Global Securities) shall be issued in denominations of
$1,000 and any integral multiple thereof.
If the Securities of any Series shall bear interest, each Security of
such Series shall bear interest from the applicable date at the rate per annum
specified in the Certified Resolution or Supplemental Indenture with respect to
such Series of Securities. Unless otherwise specified in the Certified
Resolution or Supplemental Indenture with respect to the Securities of any
Series, interest on the Securities of such Series shall be computed on the basis
of a 360-day year of twelve 30-day months. Such interest shall be payable on the
Interest Payment Dates, specified in the Certified Resolution or Supplemental
Indenture with respect to such Series of Securities. The Person in whose name
any Security is registered at the close of business on any applicable Record
Date for the Series of which such Security is a part shall be entitled to
receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date
unless such Security shall have been called for redemption on a Redemption Date
which is subsequent to such Record Date and prior to such Interest Payment Date
or unless the Company shall default in the payment of interest due on such
Interest Payment Date on any Security of such Series.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in subsection A or B below:
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A. The Company may elect to make payment of any Defaulted
Interest on the Securities of any Series to the Persons in whose names
such Securities are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment (which date shall be such
as will enable the Trustee to comply with the next sentence hereof),
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
subsection provided. Thereupon the Trustee shall fix a special record
date (the "Special Record Date") for the payment of such Defaulted
Interest which shall be not more than 15 nor 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 a Security of such Series at such Holder's address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such Series are registered on such
Special Record Date and shall no longer be payable pursuant to the
following Subsection B.
B. The Company may make payment of any Defaulted Interest on
the Securities of any Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Subsection, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.03, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security and each such Security
shall bear interest from such date, such that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
Section 2.04. Execution of Securities. The Securities shall be executed
manually or in facsimile, by an officer and the Secretary or an Assistant
Secretary of the Company under its corporate seal, which may be affixed thereto
or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form recited herein, executed by the Trustee manually by an
authorized officer, shall be entitled to the benefits of this Indenture or of
the Guarantee or be valid or obligatory for any purpose. Such certificate of
authentication of the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Typographical or other errors or defects in the seal
or facsimile signature on any Security or in the text thereof shall not affect
the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities (manually or in facsimile), shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company or the Guarantor, such Securities nevertheless may
be authenticated and delivered or disposed of as though the Person who signed
such Securities had not
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ceased to be such officer of the Company. Also, any Security may be signed on
behalf of the Company by such Persons as on the actual date of execution of
such Security shall be the proper officers of the Company, although at the date
of the execution of this Indenture any such Person was not such officer.
Section 2.05. Registration, Transfer and Exchange of Securities. Except
as specifically otherwise provided herein with respect to Global Securities,
Securities of any Series may be exchanged for a like aggregate principal amount
of Securities of the same Series of other authorized denominations. Securities
to be exchanged shall be surrendered at the offices or agencies to be maintained
in accordance with the provisions of Section 11.02 and the Company shall execute
the Security or Securities, and the Trustee shall authenticate and deliver in
exchange therefor the Security or Securities which the Securityholder making the
exchange shall be entitled to receive.
The Company shall keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Company in accordance with the
provisions of Section 11.02 with respect to the Securities of each Series, the
Register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of the Securities of such Series
and the transfer of Securities of such Series as in this Article provided. The
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the Register shall be open for inspection by the Trustee and any registrar of
the Securities of such Series other than the Trustee. Upon due presentment for
transfer of any Security of any Series at the offices or agencies of the Company
to be maintained in accordance with Section 11.02 with respect to the Securities
of such Series, the Company shall execute a new Security and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same Series for a like aggregate principal amount
of authorized denominations.
Notwithstanding any other provisions of this Section 2.05, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series may
not be transferred except as a whole by the Depository for such Series to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository for such Series or a nominee of such successor
Depository.
All Securities of any Series presented or surrendered for exchange,
transfer, redemption, conversion or payment shall, if so required by the Company
or any registrar of the Securities of such Series, be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company and
such registrar, duly executed by the registered Holder or by such Person's
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or transfer (a) any
Securities of any Series during a period beginning at the opening of business 15
days before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities of such Series and ending
at the close of business on the day of such publication or mailing or (b) any
Securities called or selected for redemption in whole or in part, except, in the
case of Securities called for redemption in part, the portion thereof not so
called for redemption in whole or in part, during a period beginning at the
opening of business on any Record Date for such Series and ending at the close
of business on the relevant Interest Payment Date therefor.
Section 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any Series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such Series which are
printed, lithographed, typewritten or otherwise produced, in any denomination
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Securities may
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determine, as evidenced by their execution of such Securities. Every such
temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such Series
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities without charge to the Holder at the offices or agencies to be
maintained by the Company as provided in Section 11.02 with respect to the
Securities of such Series. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such Series. Until so
exchanged, the temporary Securities of any Series shall in all respects be
entitled to the benefits of this Indenture and interest thereon, when and as
payable, shall be paid to the owners of the temporary Securities upon
presentation thereof for notation of such payment thereon.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. If (i)
any mutilated Security is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) there is delivered to the Company, the Guarantor and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.07, 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 connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Indenture equally and ratably
with all other Outstanding Securities of such Series.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.08. Cancellation and Destruction of Surrendered Securities.
All Securities surrendered for payment, redemption, transfer, conversion or
exchange shall, if surrendered to the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or of the Trustee, be delivered to the
Trustee, and the same, together with Securities surrendered to the Trustee for
cancellation, shall be canceled by it, and thereafter disposed by it as directed
by the Company and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Securities and deliver a certificate of destruction
thereof to the Company and the Guarantor unless by an Officer's Certificate of
the Company, the Company shall direct that canceled Securities be returned to
it. If the Company shall purchase or otherwise acquire any of the Securities,
however, such purchase or acquisition shall not operate as a payment, redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the Company, or the Guarantor, at their respective options, shall deliver
or surrender the same to the Trustee for cancellation.
Section 2.09. Securities in Global Form; Depositories. (a) Each Global
Security shall: (i) represent and be denominated in an aggregate amount equal to
the aggregate principal amount of the Securities of the Series to be represented
by such Global Security, (ii) be registered in the name of either the
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Depository for such Global Security or the nominee of such Depository, (iii) be
delivered by the Trustee to such Depository or pursuant to such Depository's
written instruction and (iv) bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Global Security may not be transferred except as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any nominee to a successor Depository or a nominee of any
successor Depository." The notation of the record owner's interest in such
Global Security upon the original issuance thereof shall be deemed to be
delivered in connection with the original issuance of each beneficial owner's
interest in such Global Security. Without limiting the foregoing, the Company,
the Guarantor and the Trustee shall have no responsibility, obligation or
liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Series of Securities represented by
the Global Security to any Person having any ownership interest in such Global
Security or to any of the Depository's participating organizations or (z) any
payment made on account of any beneficial ownership interest in such Global
Security.
(b) If any Security of a Series is issuable in the form of a Global
Security or Securities, each such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities of such Series from
time to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities of such Series represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Global Security to reflect
the amount of Outstanding Securities of a Series represented thereby shall be
made by the Trustee and in such manner as shall be specified on such Global
Security. Any instructions by the Company with respect to a Global Security,
after its initial issuance, shall be in writing but need not comply with Section
14.03 of this Indenture.
(c) Each Depository designated pursuant to the provisions of Section
2.01 of this Indenture for a Global Security must, at the time of its
designation and at all times while it serves as a depository, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation. If at any time the Depository for the
Securities of a Series notifies the Company that it is unwilling or unable to
continue as Depository for the Securities of such Series or if at any time the
Depository for the Securities of such Series shall no longer be eligible under
this Section 2.09, the Company shall appoint a successor Depository with respect
to the Securities of such Series. If a successor Depository for the Securities
of such Series is not appointed by the Company within 90 days after the Company
receives such notice or learns of such ineligibility, the Company shall execute
and the Company shall direct the Trustee to authenticate and deliver definitive
Securities of such Series in authorized denominations in exchange for the Global
Security or Securities. Upon receipt of such direction, the Trustee shall
thereupon authenticate and deliver the definitive Securities of such Series in
the same aggregate principal amount as the Global Security or Securities
representing such Series in exchange for such Global Security or Securities, in
accordance with the provisions of subsection (e) of this Section 2.09, without
any further corporate action by the Company or the Guarantor.
(d) The Company may at any time and in its sole discretion determine
that the Securities of any Series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute and upon receipt of a written order from
the Company, the Trustee shall thereupon authenticate and deliver Securities of
such Series in definitive form and in authorized denominations in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Series in exchange for such Global Security or
Securities, in accordance with the provisions of subsection (e) of this Section
2.09 without any further corporate action by the Company or the Guarantor.
(e) Upon any exchange hereunder of the Global Security or Securities
for Securities in definitive form, such Global Security or Securities shall be
canceled by the Trustee. Securities issued hereunder in exchange for the Global
Security or Securities shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to
instructions from its direct or indirect
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participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such definitive Securities in exchange for the Global Security or
Securities to the Persons in whose name such definitive Securities have been
registered in accordance with the directions of the Depository.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities. Securities of any Series may be
made subject to redemption prior to their Stated Maturity, as a whole or in
part, at such time or times, upon payment of the principal amount thereof plus
such premium or premiums, if any, as shall be set forth in the Certified
Resolution or the Supplemental Indenture relating to such Series.
Section 3.02. Notice of Redemption. In all cases other than redemption
at the option of the Holders of Securities, notice of redemption shall be
mailed, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Person in whose name any Security called for redemption is registered on
the Register as of the date of such notice, but neither a failure to give notice
by mail nor any defect in any notice so mailed shall affect the validity of the
proceedings for such redemption. Each notice of redemption shall state the
Redemption Date, the Redemption Price, the place of redemption, the principal
amount and, if less than all, the distinctive numbers of the Securities to be
redeemed and shall also state that the interest on the Securities in such notice
designated for redemption shall cease to accrue from and after such Redemption
Date.
Notice of redemption of Securities may be given by the Company, or at
the option of the Company, by the Trustee on behalf of the Company. Upon receipt
of any direction to give notice, the Trustee shall immediately give such notice.
The Trustee may rely upon such direction that all conditions precedent to the
giving of such direction have been complied with or done.
Section 3.03. Selection of Securities for Redemption. Whenever
provision is made for the redemption of any Series of Securities or portion
thereof and less than all of the Securities of such Series or portion thereof
are called for redemption, the Trustee shall select the Securities to be
redeemed, from the Outstanding Securities of such Series or portion thereof not
previously called for redemption, in any manner which the Trustee deems fair and
appropriate. For the purpose of any such selection, the Trustee shall assign a
separate number for each $1,000 principal amount of each Security of a
denomination of more than $1,000, except that if the Securities of any Series
are denominated in a currency other than United States Dollars, the Trustee
shall assign a separate number for each amount equal to the minimum denomination
of each Security of such Series of a denomination greater than such minimum
denomination.
Section 3.04. Partial Redemption of Registered Security. Upon surrender
of any registered Security (including any Global Security) to be redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the registered owner thereof, without service charge, a new Security
or Securities (or in the case of a Global Security, a new Global Security) of
the same Series and maturity and of authorized denomination or denominations as
requested by such registered owners, in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Security so
surrendered.
Section 3.05. Effect of Redemption. If notice of redemption shall have
been duly given as provided in Section 3.02, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place or places stated in such notice at the
Redemption Price specified in such notice, and on and after such Redemption Date
(unless the Company and the Guarantor shall default in the payment of such
Securities at the applicable Redemption Price) such Securities or portions of
Securities shall cease to bear interest, and such Securities shall cease from
and after the Redemption Date to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect of such
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Securities except the right to receive the Redemption Price thereof and any
unpaid interest accrued to the Redemption Date. Upon presentation and surrender
of such Securities at said place of payment in said notice specified, the said
Securities or portions thereof shall be paid and redeemed by the Company or the
Guarantor at the applicable Redemption Price, together with any interest accrued
to the Redemption Date; provided, however, that any regular payment of interest
becoming due on any Securities on the Redemption Date shall be payable to the
registered owners of such Securities as of the relevant Record Date as provided
in Article Two hereof. Upon presentation of any Security which is redeemed in
part only, the Company shall execute a new Security and the Trustee shall
authenticate and deliver at the expense of the Company a new Security of the
same Series of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, to the extent permitted
by law, bear interest from the date fixed for redemption at the rate borne by
the Security, or, in the case of a Security which does not bear interest, at the
rate of interest set forth therefor in the Security, in either case, until paid.
ARTICLE FOUR
THE GUARANTEE BY AND
COVENANTS OF THE GUARANTOR
Section 4.01. Guarantee. The Guarantor hereby unconditionally
guarantees to the Holders from time to time of the Securities (a) the full and
prompt payment of the principal of and any premium on any Security when and as
the same shall become due, whether at the stated maturity thereof, by
acceleration, redemption or otherwise and (b) the full and prompt payment of any
interest on any Security when and as the same shall become due. Each payment by
the Guarantor with respect to any Security shall be paid in the currency
specified in this Indenture or in the related Certified Resolution or
Supplemental Indenture for payments on such Security. Each and every default in
the payment of the principal of or interest or any premium on any Security shall
give rise to a separate cause of action hereunder, and separate suits may be
brought hereunder as each cause of action arises.
The obligations of the Guarantor hereunder shall be absolute and
unconditional and shall remain in full force and effect until the entire
principal of and interest and any premium on the Securities shall have been paid
or provided for in accordance with the provisions of this Indenture, and such
payment shall not be affected, modified or impaired upon the happening from time
to time of any event, including without limitation any of the following, whether
or not with notice to, or the consent of, the Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements
of the Company under this Indenture or the Securities;
(b) the failure to give notice to the Guarantor of the occurrence
of an Event of Default;
(c) the waiver, compromise or release of the payment,
performance or observance by the Company or the Guarantor of any or all
of the obligations, covenants or agreements of either of them contained
in this Indenture;
(d) the extension of the time for payment of any principal of
or interest or any premium on any Security or for any other payment
under this Indenture or of the time for performance of any other
obligations, covenants or agreements under or arising out of this
Indenture;
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(e) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in this
Indenture or the Securities;
(f) the taking or the omission of any of the actions referred
to in this Indenture and any of the actions under the Securities;
(g) any failure, omission, delay or lack on the part of the
Trustee to enforce, assert or exercise any right, power or remedy
conferred on the Trustee in this Indenture, or any other act or acts on
the part of the Trustee or any of the Holders from time to time of the
Securities;
(h) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets,
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other
similar proceedings affecting the Guarantor, or the Company or any of
the assets of any of them, or any allegation or contest of the validity
of the Guarantee in any such proceeding;
(i) to the extent permitted by law, the release or discharge
by operation of law of the Guarantor from the performance or observance
of any obligation, covenant or agreement contained in this Indenture;
(j) to the extent permitted by law, the release or discharge
by operation of law of the Company from the performance or observance
of any obligation, covenant or agreement contained in this Indenture;
(k) the default or failure of the Guarantor or the Trustee
fully to perform any of its obligations set forth in this Indenture or
the Securities; or
(l) the invalidity of this Indenture or the Securities or any
part of any thereof.
No set-off, counterclaim, reduction, or diminution of any obligation,
or any defense of any kind or nature which the Guarantor has or may have against
the Trustee shall be available hereunder to the Guarantor against the Trustee to
reduce the payments of the Guarantor under this Section 4.01.
The Guarantor assumes responsibility for being and remaining informed
of the financial condition of the Company and of all other circumstances bearing
upon the risk of nonpayment of amounts owing under the Securities which diligent
inquiry would reveal and agrees that the Holders of the Securities shall have no
duty to advise the Guarantor of information known to any of them regarding such
condition or any such circumstances.
Section 4.02. Proceedings Against the Guarantor. In the event of a
default in the payment of principal of or any premium on any Security when and
as the same shall become due, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in
any sinking fund payment, or in the event of a default in the payment of any
interest on any Security when and as the same shall become due, the Trustee
shall have the right to proceed first and directly against the Guarantor under
this Indenture without first proceeding against the Company or exhausting any
other remedies which it may have and without resorting to any other security
held by the Trustee.
The Trustee shall have the right, power and authority to do all things
it deems necessary or advisable to enforce the provisions of this Indenture
relating to the Guarantee and protect the interests of the Holders of the
Securities and, in the event of a default in payment of the principal of or any
premium on any Security when and as the same shall become due, whether at the
stated maturity thereof, by acceleration, call for
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redemption or otherwise, or in the event of a default in the payment of any
interest on any Security when and as the same shall become due, the Trustee may
institute or appear in such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of its rights and the
rights of the Securityholders, whether for the specific enforcement of any
covenant or agreement in this Indenture relating to the Guarantee or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Without limiting the generality of the foregoing, in the event of a default in
payment of the principal of or interest or any premium on any Security when due,
the Trustee 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 Guarantor and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Guarantor, wherever situated.
Section 4.03. Guarantee for Benefit of Securityholders. The Guarantee
contained in this Indenture is entered into by the Guarantor for the benefit of
the Holders from time to time of the Securities. Such provisions shall not be
deemed to create any right in, or to be in whole or in part for the benefit of
any Person other than the Trustee, the Guarantor, the Holders from time to time
of the Securities and their permitted successors and assigns.
Section 4.04. Corporate Existence of Guarantor; Consolidation, Merger,
Sale or Transfer. The Guarantor covenants that so long as any of the Securities
are Outstanding, it will maintain its corporate existence, will not dissolve,
sell or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided that the Guarantor
may, without violating the covenants in this Section 4.04 contained, consolidate
with or merge into another corporation or permit one or more other corporations
to consolidate with or merge into it, or sell or otherwise transfer to another
corporation all or substantially all of its assets as an entirety and thereafter
dissolve, if the surviving, resulting or transferee corporation, as the case may
be, (i) shall be incorporated and existing under the laws of one of the States
of the United States of America, (ii) assumes, if such corporation is not the
Guarantor, all of the obligations of the Guarantor hereunder and (iii) is not,
after such transaction, otherwise in default under any provisions hereof.
Section 4.05. Securities to Be Secured in Certain Events. If, upon any
consolidation or merger of the Guarantor, any Principal Property would thereupon
become subject to any mortgage, security interest, pledge, lien or other
encumbrance (the "Attaching Lien"), the Guarantor, prior to any such
consolidation or merger, will secure the Outstanding Securities (together with,
if the Guarantor shall so determine, any other indebtedness of or guaranteed by
the Guarantor ranking equally with the Securities and then existing or
thereafter created) equally and ratably with the debt or other obligation
secured by the Attaching Lien unless such debt or other obligation secured by
the Attaching Lien could have been incurred by the Guarantor or a Restricted
Subsidiary without being required by the provisions of Section 4.06 (whether or
not such Section may be applicable to any Series of Securities) to secure the
Securities equally and ratably therewith.
Section 4.06. Limitations on Liens. Nothing in this Indenture or
(except as expressly provided with respect to a Series in the establishment of
the terms thereof) in the Securities contained shall in any way restrict or
prevent the Guarantor or any Subsidiary from incurring any indebtedness;
provided that the Guarantor covenants and agrees that it will not itself and
will not permit any Restricted Subsidiary to issue, assume or guarantee any
notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed (notes, bonds, debentures or other similar evidences of indebtedness
for money borrowed being hereinafter in this Article Four called "Debt") secured
by a pledge of, or mortgage or lien on (mortgages, pledges and liens being
hereinafter in this Article Four called "liens"), any of the Guarantor's or any
Restricted Subsidiary's Principal Properties or any shares of stock of or
indebtedness of any Restricted Subsidiary (such Principal Properties, stock and
indebtedness being hereinafter collectively referred to as "Property"), without
effectively providing that the Securities (together with, if the Guarantor shall
so determine, any other Debt of the Guarantor or such Restricted Subsidiary then
existing or thereafter created ranking equally with the Securities, including
guarantees of indebtedness of others) shall be secured equally and ratably with
(or prior to) such Debt, so long as such Debt shall be so secured, except that
this Section 4.06 shall not apply to Debt secured by:
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(1) liens on Property of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(2) liens on Property existing at the time of acquisition
thereof or to secure the payment of all or any part of the purchase
price thereof or to secure any Debt incurred prior to, at the time of
or within 24 months after the acquisition of such Property for the
purpose of financing all or any part of the purchase price thereof;
(3) liens on particular Property to secure any Debt incurred
to provide funds for all or any part of the cost of exploration,
drilling or development of such Property or the cost of improvements to
such Property;
(4) liens which secure Debt owing by a Restricted Subsidiary
to the Guarantor or any Subsidiary;
(5) liens on personal property, other than shares of stock or
indebtedness of any Restricted Subsidiary, to secure loans maturing not
more than one year from the date of the creation thereof;
(6) liens on Property to secure Debt or other indebtedness
incurred in connection with any financings done in accordance with the
provisions of Section 103 of the Internal Revenue Code of 1986, as
amended; and
(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien
referred to in the foregoing subparagraphs (1) to (6), inclusive, or of
any Debt secured thereby; provided that such extension, renewal or
replacement mortgage shall be limited to all or any part of the same
Property that secured the lien extended, renewed or replaced (plus
improvements on such Property).
Notwithstanding the restrictions contained in this Section 4.06, the
Guarantor may, and may permit any Restricted Subsidiary to, issue, assume or
guarantee Debt secured by liens on property of the types to which this Section
applies and which are not excepted by Subsections (1) through (7) of this
Section without equally and ratably securing the Securities, provided that the
sum of all such Debt then being issued, assumed or guaranteed and the aggregate
of Attributable Debt with respect to sale and leaseback arrangements of the
Guarantor and any Restricted Subsidiary permitted by Section 4.07 (whether or
not such Section may be applicable to any Series of Securities) does not exceed
ten percent of the Consolidated Adjusted Tangible Assets prior to the time such
Debt was issued, assumed or guaranteed.
The following types of transactions, among others, shall not be deemed
to create "Debt" secured by "liens" within the meaning of those terms as defined
above:
(a) the sale or other transfer of (i) oil, gas or other
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii)
any other interest in property of the character commonly referred to as
a "production payment"; and
(b) the mortgage or pledge of any property of the Guarantor or
any Subsidiary in favor of the United States, or any State, or any
department, agency or instrumentality of either, to secure partial,
progress, advance or other payments to the Guarantor or any Subsidiary
pursuant to the provisions of any contract or statute.
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Section 4.07. Limitation on Sale and Leaseback. The Guarantor will not
itself, and will not permit any Restricted Subsidiary to, enter into any
arrangement (except for temporary leases for a term of not more than three
years, or except for sale or transfer and leaseback transactions involving the
acquisition or improvement of Principal Properties provided that the amount of
consideration received at the time of sale or transfer by the Guarantor or such
Restricted Subsidiary for the property so sold or transferred shall be applied
as set forth in subparagraph (2) below) with any bank, insurance company or
other lender or investor, or to which any such lender or investor is a party,
providing for the leasing to the Guarantor or any Restricted Subsidiary of any
Principal Property which has been or is to be sold or transferred by the
Guarantor or any Restricted Subsidiary to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or investor
on the security of such property unless, either:
(1) the Guarantor or any Restricted Subsidiary could create
Debt secured by a mortgage pursuant to Section 4.06 on the property to
be leased without equally and ratably securing the Securities or
(2) The Guarantor within the 12 months preceding such sale or
transfer or the 12 months following such sale or transfer, regardless
of whether such sale or transfer may have been made by the Guarantor or
by a Restricted Subsidiary, has applied or applies an amount equal to
the greater of (a) the net proceeds of the sale of the property leased
pursuant to such arrangement or (b) the fair value of the property so
leased at the time of entering into such arrangement:
(i) to the voluntary retirement of debt of the
Guarantor or of a Restricted Subsidiary or debt of a
Subsidiary guaranteed by the Guarantor which debt matures by
its terms more than one year after the date on which it was
originally incurred (collectively herein called "funded
debt"); provided that there shall be credited against the
amount required by subparagraph (2) to be applied to the
retirement of funded debt an amount equal to:
(A) the principal amount of any Securities
delivered within the 12 months preceding such sale or
transfer or the 12 months following such sale or
transfer to the Trustee for voluntary retirement and
cancellation, and
(B) the principal amount of funded debt,
other than Securities, voluntarily retired by the
Guarantor within 12 months before or after such sale;
or
(ii) to the acquisition, development or improvement
of a Principal Property or Principal Properties.
Section 4.08. Notice of Default. The Guarantor covenants that, as soon
as is practicable, the Guarantor will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Guarantor proposes to take with respect
thereto.
Section 4.09. Waiver of Certain Covenants of Guarantor. The Guarantor
may omit in any particular instance to comply with any covenant, term, provision
or condition set forth in this Article Four with respect to the Securities of
any series if before the time for such compliance, the Holders of at least a
majority in principal amount of the Securities of such Series at the time
Outstanding shall either waive such compliance in such instance or generally
waive compliance with such covenant, term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Guarantor in respect of any such covenant, term, provision or
condition shall remain in full force and effect.
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ARTICLE FIVE
SECURITYHOLDERS' LISTS
Section 5.01. Company to Furnish Trustee Information As to the Names
and Addresses of Securityholders. The Company will furnish or cause to be
furnished to the Trustee, not less than 45 days nor more than 60 days after each
date (month and day) specified as an Interest Payment Date for the Securities of
the first Series issued under this Indenture (whether or not any Securities of
that Series are then Outstanding), but in no event less frequently than
semiannually, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list, in such
form as the Trustee may reasonably require, containing all the information in
the possession or control of the Company, or any of its Paying Agents other than
the Trustee, as to the names and addresses of the Holders of Securities,
obtained since the date as of which the next previous list, if any, was
furnished, excluding from any such list the names and addresses received by the
Trustee in its capacity as registrar (if so acting). Any such list may be dated
as of a date not more than 15 days prior to the time such information is
furnished and need not include information received after such date.
Section 5.02. Preservation of Information; Communication to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities of
each Series (1) contained in the most recent list furnished to it as provided in
Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Trustee within the two preceding
years as provided for in Section 5.04(c). The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of any Series or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02 or
(2) inform such applicants as to the approximate number of
Holders of Securities of such Series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.02, and as to the approximate cost of mailing to
such Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the Holders of Securities of such Series, or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such Series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing
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upon the objections specified in the written statement so filed, shall enter an
order refusing to sustain any of such objections or if, after the entry of an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Securityholders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding
the same, agrees with the Company, the Guarantor and the Trustee that neither
the Company nor the Guarantor nor the Trustee nor any Paying Agent nor any
registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section 5.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
Section 5.03. Reports by Company and Guarantor. (a) The Company and the
Guarantor each covenant and agree to file with the Trustee within 30 days after
the Company or the Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company or the
Guarantor may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company or the
Guarantor is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company and the Guarantor each covenant and agree to file with
the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company or the
Guarantor, as the case may be, with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company and the Guarantor each covenant and agree to transmit
to the Holders of Securities within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04,
such summaries of any information, documents and reports required to be filed by
the Company or the Guarantor, as the case may be, pursuant to subsections (a)
and (b) of this Section 5.03 as may be required by rules and regulations
prescribed from time to time by the Commission.
(d) The Company, the Guarantor and any other obligor on the Securities
each covenant and agree to furnish to the Trustee, not less than annually, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's or the Guarantor's compliance with all conditions and covenants of
this Indenture (which compliance shall be determined without regard to any
period of grace or requirement of notice as provided in this Indenture). Such
certificates need not comply with Section 14.03 of this Indenture.
Section 5.04. Reports by Trustee. (a) On or before the first July 15th
following the date of execution of this Indenture, and on or before July 15 in
every year thereafter, if and so long as any Securities are Outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section 5.04 provided, a brief report dated as of the preceding May 15 with
respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
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(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 7.08(d)
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any Series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of the Securities of
such Series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company or the Guarantor (or by any other
obligor on the Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except indebtedness based upon a
creditor relationship arising in any manner described in paragraph (2),
(3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any Series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of Securities of such
Series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by mail
to (i) all Holders of Securities of any Series, as the names and addresses of
such Holders shall appear upon the Register of the Securities of such Series,
(ii) to such Holders of Securities as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that purpose
and (iii) except in the case of reports pursuant to subsection (b) of this
Section 5.04 to each Holder whose name and address are preserved at the time by
the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange upon which
the Securities of any Series are listed and also with the
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Commission. The Company will notify the Trustee when and as the Securities of
any Series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration, Waiver of Default and
Restoration of Position and Rights. The term "Event of Default" whenever used
herein with respect to any particular Series of Securities shall mean any one of
the following events:
(a) default in the payment of any installment of interest on
any Security of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days, or
(b) default in the payment of all or any part of the principal
of or any premium on any Security of such Series as and when the same
shall become due and payable whether at maturity, by proceedings for
redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund payment
obligation relating to such Series of Securities, when and as such
obligation shall become due and payable, or
(d) failure on the part of the Company or the Guarantor duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of the Company or the Guarantor in
the Securities or in this Indenture (including any Supplemental
Indenture or pursuant to any Certified Resolution, as contemplated by
Section 2.01) specifically contained for the benefit of the Holders of
the Securities of such Series, for a period of 90 days after there has
been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee, or to the Company, the Guarantor and the
Trustee by the Holders of not less than 25% in principal amount of the
Securities of such Series and all other Series so benefitted (all
Series voting as one class) at the time Outstanding under this
Indenture a written notice specifying such failure and stating that
such is a "Notice of Default" hereunder, or
(e) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Company or for any substantial part of its property,
or ordering the winding up or liquidation of its affairs, if such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days, or
(f) the commencement by the Company of a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the Company's consent to the entry of an order
for relief in any involuntary case under any such law, or its consent
to the appointment of or taking possession by a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or similar official) of the
Company or for any substantial part of its property, or the making by
the Company of any general assignment for the benefit of creditors, or
its failure generally to pay its debts as they become due or the taking
by the Company of any corporate action in furtherance of any of the
foregoing, or
(g) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Guarantor in an
involuntary case under any applicable bankruptcy,
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insolvency or other similar law now or hereafter in effect, or appointing
a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Guarantor or for any substantial part of its
property, or ordering the winding up or liquidation of its affairs, if
such decree or order shall remain unstayed and in effect for a period of
60 consecutive days, or
(h) the commencement by the Guarantor of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the Guarantor's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Guarantor or for any substantial part of its property,
or the making by the Guarantor of any general assignment for the
benefit of creditors, or its failure generally to pay its debts as they
become due or the taking by the Guarantor of any corporate action in
furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Securities, then and in each
and every such case, unless the principal amount of all the Securities of each
Series as to which there is an Event of Default shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in principal
amount of the Securities of such Series then Outstanding hereunder (each such
Series voting as a separate class) by notice in writing to the Company and to
the Guarantor (and to the Trustee if given by Securityholders) may declare the
principal amount (or, if the Securities of any such Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such Series) of all the Securities of such Series, together with
any accrued interest, to be due and payable immediately and upon any such
declaration the same shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the condition
that if, at any time after the principal amount of the Securities of any one or
more Series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
moneys due shall have been obtained or entered as hereinafter provided, the
Company or the Guarantor shall pay or shall deposit with the Trustee a sum
sufficient to pay any matured installments of interest upon all the Securities
of such Series (or upon all the Securities, as the case may be) and the
principal of any and all Securities of such Series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne by
or prescribed therefor in the Securities of such Series to the date of such
payment or deposit) and the amounts payable to the Trustee under Section 7.06
and any and all defaults under the Indenture with respect to Securities of such
Series (or all Securities, as the case may be), other than the non-payment of
principal of and any accrued interest on Securities of such Series (or any
Securities, as the case may be) which shall have become due by declaration shall
have been cured, remedied or waived as provided in Section 6.09 -- then and in
every such case the Holders of a majority in principal amount of the Securities
of such Series (or of all the Securities, as the case may be) then Outstanding
(such Series or all Series voting as one class if more than one Series are so
entitled) by written notice to the Company, to the Guarantor and to the Trustee,
may rescind and annul such declaration and its consequences; but no such
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Guarantor, the Trustee and the Holders of the Securities of such
Series (or of all the Securities, as the case may be) shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Guarantor and the Trustee and the
Holders of the Securities of such Series (or of all the Securities, as the case
may be) shall continue as though no such proceedings had been taken.
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Section 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal. The Company covenants
that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days or
(2) in case default shall be made in the payment of all or any
part of the principal of any of the Securities of any Series when the
same shall have become due and payable, whether at the Stated Maturity
of the Securities of such Series or by any call for redemption or upon
declaration of acceleration or otherwise or
(3) default shall be made in the satisfaction of any sinking
fund obligation when and as such obligation becomes due and payable,
upon demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the Holders of the Securities of such Series, the whole amount that then
shall have become due and payable on all such Securities of such Series for
principal (and any premium) and interest and for any overdue sinking fund
payment together with interest upon the overdue principal and installments of
interest (to the extent permitted by law) at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of such Series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expense of collection, including a reasonable compensation to the Trustee, its
agents and counsel, and any expenses or liabilities incurred, and all advances
made, by the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company, the Guarantor or any other obligor
upon such Securities, and collect in the manner provided by law out of the
property of the Company, the Guarantor or any other obligor upon such Securities
wherever situated the moneys adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 6.03. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any Series 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 interest) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
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(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.04. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee to the fullest extent
permitted by law without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 6.05. Application of Moneys Collected By Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become due
and be unpaid, to the payment of any interest on such Securities, in
the order of the maturity of the installments of such interest, with
interest upon the overdue installments of interest (so far as permitted
by law and to the extent that such interest has been collected by the
Trustee at the rate or rates of interest borne by such Securities or
prescribed therefor therein), such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon such Securities for principal and interest, if
any, with interest on the overdue principal and any installments of
interest (so far as permitted by law and to the extent that such
interest has been collected by the Trustee) at the rate or rates of
interest borne by, or prescribed therefor in, such Securities; and in
case such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Company, the Guarantor or their successors or assigns,
or to whomsoever may be lawfully entitled to receive the same, or as a
court of competent jurisdiction may direct.
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Section 6.06. Limitation on Suits By Holders of Securities. No Holder
of any Security of any Series shall have any right by virtue or by availing of
any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of a
continuing Event of Default, as hereinbefore provided, and unless also the
Holders of not less than 25% in principal amount of the Securities of such
Series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby (including the reasonable fees of counsel for the Trustee), and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to this Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the Holders of any other of such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any Holder of any Security to receive payment of the principal of and interest
on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates shall not be impaired or affected without the
consent of such Holder.
Section 6.07. Rights and Remedies Cumulative. All powers and remedies
given by this Article Six to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder of any of the Securities to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders. 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 6.08. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 6.06, every right and remedy given by this
Article Six or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 6.09. Control By Holders; Waiver of Past Defaults. The Holders
of a majority in principal amount of the Securities of a Series at the time
Outstanding (determined as provided in Section 8.04) and with respect to which
an Event of Default shall have occurred and be continuing 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; provided, however, that, subject to Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
reliance upon an Opinion of Counsel
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determines that the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceedings so directed would be illegal or involve
it in personal liability or be unduly prejudicial to the rights of Holders not
parties to such direction, and provided further that nothing in this Indenture
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by the Holders.
The Company may set a special record date for purposes of determining
the identity of the Holders of Securities entitled to vote or consent to any
action by vote or consent authorized or permitted by this Section 6.09. Such
record date shall be the later of 15 days prior to the first solicitation of
such consent or the date of the most recent list of holders furnished to the
Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the
Securities of any Series at the time Outstanding (determined as provided in
Section 8.04) may on behalf of the Holders of all the Securities of such Series
waive any past Event of Default with respect to such Series and its consequences
(subject to Section 6.02), except a continuing Event of Default specified in
Section 6.01(a), (b) or (c), or in respect of a covenant or provision hereof
which under Article Ten cannot be modified or amended without the consent of the
Holder of each Security so affected. Upon any such waiver, the Company, the
Guarantor, the Trustee and the Holders of the Securities of such Series shall be
restored to their former positions and rights hereunder, respectively, and such
Event of Default shall be deemed to have been cured and not continuing for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon.
Section 6.10. Trustee to Give Notice of Defaults Known to It, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
Series, give to the Holders of the Securities of such Series in the manner and
to the extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of said Section 5.04, notice of such default known to
the Trustee unless such default shall have been cured, remedied or waived before
the giving of such notice (the term "default" for the purposes of this Section
6.10 being hereby defined to be the events specified in Section 6.01 and any
additional events specified in the terms of any Series of Securities pursuant to
Section 2.01 not including any periods of grace provided for therein, and
irrespective of the giving of written notice specified in clause (d) of Section
6.01 and in any such terms); provided, that except in the case of default in the
payment of the principal of or interest on any of the Securities of such Series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
of such Series.
Section 6.11. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder of any Security by such Holder's 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, 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 6.11 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder of
Securities of any Series, or group of such Holders, holding in the aggregate
more than ten percent in principal amount of the Securities of such Series
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or any interest or premium on any Security, on or
after the due date expressed in such Security (or in the case of any redemption,
on or after the Redemption Date).
ARTICLE SEVEN
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CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured, remedied or waived), 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 or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, provided, however, that:
(a) prior to the occurrence of an Event of Default and after
the curing, remedying or waiving of all Events of Default which may
have occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the 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
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.09
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the exercise
of any of its rights or powers, if there is reasonable ground for believing that
the repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties.
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(b) Any request, direction, order or demand of the Company or the
Guarantor mentioned herein shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of
Directors of the Company or of the Guarantor may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the case may be.
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel.
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby.
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document,
unless requested in writing so to do by the Holders of Securities
pursuant to Section 6.09; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; and provided further, that
nothing in this subsection (f) shall require the Trustee to give the
Securityholders any notice other than that required by Section 6.10.
The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand.
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
Section 7.03. Trustee Not Responsible for Recitals or Application of
Proceeds. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company or the Guarantor, as the case may be, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
Section 7.04. Trustee May Own Securities. The Trustee, any Paying
Agent, registrar or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee
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of Securities with the same rights it would have if it were not Trustee,
Paying Agent, registrar or such other agent.
Section 7.05. Moneys Received by Trustee to be Held in Trust. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Company.
Section 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of any express trust), and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with the acceptance or
administration of its trust under this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also agrees
to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises. The obligations
of the Company under this Section to compensate the Trustee, to pay or reimburse
the Trustee for expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or interest or redemption premium on
particular Securities.
Section 7.07. Right of Trustee to Rely on Officers' Certificate Where
No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate of the Company or the Guarantor delivered to the Trustee, and such
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Disqualification; Conflicting Interest. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 7.08, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided in this Section 7.08,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of a successor trustee and
such successor's acceptance of such appointment, and the Company shall take
prompt steps to have a successor appointed in the manner provided in Section
7.10.
(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, the Trustee shall, within ten days
after the expiration of such 90-day period, transmit notice of such failure to
the Securityholders in the manner and to the extent provided in subsection (c)
of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Indenture, unless
the Trustee's duty to resign is stayed as provided in subsection (f) of this
Section 7.08, any Holder who has been a bona fide
---- ----
Holder of Securities for at least six months may, on such Holder's behalf and
on behalf of all other Holders similarly situated, petition any court of
competent jurisdiction for the removal of such Trustee and the appointment of
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a successor, if such Trustee fails after written request thereof by such Holder
to comply with the provisions of subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any Series if
an Event of Default (exclusive of any period of grace or requirement of notice)
has occurred with respect to securities of such Series and:
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Company or the Guarantor or any other
obligor on the Securities are outstanding or is trustee for more than
one outstanding series of securities, as hereinafter defined, under a
single indenture of the Company, the Guarantor or any other obligor on
the Securities, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities,
provided that there shall be excluded from the operation of this
paragraph, this Indenture with respect to the Securities of any other
Series outstanding, the Indenture dated as of May 15, 1987 among
Chevron Capital U.S.A. Inc, as issuer, Chevron Corporation, as
guarantor and the Trustee and the Indenture dated as of June 15, 1995
between Chevron Corporation and the Trustee and any other indenture or
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company or the Guarantor or
any other obligor on the Securities are outstanding, if (A) this
Indenture is and such other indenture or indentures (and all series of
securities issued thereunder) are wholly unsecured and rank equally,
and such other indenture or indentures (and such series) are hereafter
qualified under the Trust Indenture Act of 1939, unless the Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture Act
of 1939, that differences exist between the provisions of this
Indenture with respect to Securities of such Series and one or more
other Series, or the provisions of this Indenture and the provisions of
such other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of such Series and such other Series, or under
this Indenture and such other indenture or indentures, or (B) the
Company or the Guarantor shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture with respect to
Securities of such Series and such other Series, or under this
Indenture and such other indenture, is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to Securities of
such Series and such other Series, or under this Indenture and one of
such indentures,
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company or the Guarantor or any other obligor
on the Securities,
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company or the Guarantor or any
other obligor on the Securities,
(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company or the Guarantor or any other obligor on the Securities,
or of an underwriter (other than the Trustee itself) for the Company or
the Guarantor or any other obligor on the Securities who is currently
engaged in the business of underwriting, except that (A) one individual
may be a director and/or an executive officer of the Trustee and a
director and/or an executive officer of the Company or the Guarantor or
any other obligor on the Securities, but may not be at the same time an
executive officer of both the Trustee and the Company or the Guarantor
or any other obligor
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on the Securities; (B) if and so long as the number of directors of the
Trustee in office is more than nine, one additional individual may be a
director and/or an executive officer of the Trustee and a director of the
Company or the Guarantor or any other obligor on the Securities; and
(C) the Trustee may be designated by the Company or the Guarantor or any
other obligor on the Securities or by an underwriter for the Company or the
Guarantor or any other obligor on the Securities to act in the capacity of
transfer agent, registrar, custodian, paying agent, fiscal agent, escrow
agent or depository, or in any other similar capacity, or, subject to the
provisions of paragraph (1) of this subsection (d), to act as trustee
whether under an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee are beneficially owned either by the Company or the Guarantor or
any other obligor on the Securities or by any director, partner or
executive officer thereof, or 20% or more of such voting securities are
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee are
beneficially owned either by an underwriter for the Company or the
Guarantor or any other obligor on the Securities or by any director,
partner or executive officer thereof, respectively, or are beneficially
owned, collectively, by any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as
hereinafter defined, (A) five percent or more of the voting securities,
or ten percent or more of any other class of security, of the Company
or the Guarantor or any other obligor on the Securities, not including
the Securities and securities issued under any other indenture under
which the Trustee is also trustee, or (B) ten percent or more of any
class of security of an underwriter for the Company or the Guarantor or
any other obligor on the Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly or
is under direct or indirect common control with the Company or the
Guarantor or any other obligor on the Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company or the Guarantor or any other
obligor on the Securities,
(9) the Trustee owns on the date of the occurrence of such
Event of Default (exclusive of any period of grace or requirement of
notice) or any anniversary thereof while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or in any
other similar capacity an aggregate of 25% or more of the voting
securities or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this subsection
(d). As to any such securities of which the Trustee acquired ownership
through becoming executor, administrator or testamentary trustee of an
estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate
do not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the date of the occurrence of any such Event
of Default and annually in each succeeding year that the Securities or
any Series thereof remain in default, the Trustee shall make a check of
its holdings of such securities in any of the above-mentioned
capacities as of such date. If the Company or the Guarantor or any
other obligor on the Securities fails to make payment in
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full of principal of or interest on any of the Securities when and as the
same becomes due and payable and such failure continues for 30 days
thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph (9), all
such securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (d), or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or
become a creditor of the Company or the Guarantor or any other obligor
on the Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(d) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a Person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or Holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depository, or in any similar representative capacity.
(e) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to the
Company or the Guarantor or any other obligor on the Securities shall
mean every Person who, within one year prior to the time as of which
the determination is made, has purchased from the Company or the
Guarantor or any other obligor on the Securities with a view to, or has
offered or sold for the Company or the Guarantor or any other obligor
on the Securities in connection with, the distribution of any security
of the Company or the Guarantor or any other obligor on the Securities
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a Person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated.
(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are evidenced
by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby a
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trustee or trustees or agent or agents for the owner or Holder of
such security are presently entitled to vote in the direction or
management of the affairs of a Person.
(5) The term "executive officer" shall mean the president,
every vice-president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and (9) of
subsection (d) of this Section 7.08, the term "security" or
"securities" shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas or
other mineral rights, or, in general, any interest or instrument
commonly known as a "security" or any certificate of interest or
participation in, temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase, any of
the foregoing.
(7) For the purpose of subsection (d)(1) of this Section 7.08,
the term "Series of securities" or "Series" means a Series, class or
group of securities issuable under an indenture pursuant to whose terms
Holders of one such Series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately
from holders of another such Series; provided, that "Series of
securities" or "Series" shall not include any Series of securities
issuable under an indenture if all such Series rank equally and are
wholly unsecured.
The percentages of voting securities and other securities specified in
this Section 7.08 shall be calculated in accordance with the following
provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Company, the Guarantor or any other Person referred to in
this Section 7.08 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
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(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various Series thereof shall not be deemed
sufficient to constitute such Series different classes, and provided
further that, in the case of unsecured evidences of indebtedness,
differences in the interest rate or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Securities, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.08 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Holders of such Series of Securities. The filing of such an application shall
automatically stay the performance of the duty to resign until the Commission
orders otherwise. Any resignation of the Trustee shall become effective only
upon the appointment of a successor trustee and such successor's acceptance of
such appointment.
Section 7.09. Requirements for Eligibility of Trustee. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a corporation organized and doing business as a commercial bank under
the laws of the United States or any state thereof or of the District of
Columbia or a corporation or other Person permitted to act as a trustee by the
Commission and, in each case, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. 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 for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor on the Securities or Person directly or indirectly controlling,
controlled by or under common control with such obligor shall serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.09, the Trustee shall resign immediately in the
manner and with the effect specified in this Article Seven.
Section 7.10. Resignation and Removal of Trustee; Appointment of
Successor. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all Series of Securities by
giving written notice of such resignation to the Company and to the Guarantor
and by giving to the Holders of Securities notice thereof in the manner and to
the extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of Section 5.04. Upon receiving such notice of
resignation and if the Company or the Guarantor shall deem it appropriate,
evidence satisfactory to it of such mailing to the Holders, the Company shall
promptly appoint a successor trustee with respect to all Series of Securities
or, if appropriate, the applicable Series by written instrument executed by an
authorized
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officer of the Company, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed with respect to any Series and have
accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of the applicable Series for
at least six months may, subject to the provisions of Section 6.11, on such
Holder's behalf and on behalf of all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable Series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
(4) The Company shall determine that the Trustee has failed to
perform its obligations under this Indenture in any material respect,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of the
Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may, on such Person's behalf and on behalf
of all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the Securities
Outstanding (determined as provided in Section 8.04) may at any time remove the
Trustee and appoint a successor trustee by written instrument or instruments
signed by such Holders or their attorneys-in-fact duly authorized, or by the
affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
Nine), and by delivery thereof to the Trustee so removed, to the successor
trustee and to the Company and the Guarantor.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
Section 7.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company, the Guarantor and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations
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with respect to such Series of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee ceasing to act
shall, upon payment of any amounts then due it pursuant to the provisions of
Section 7.06, execute and deliver an instrument transferring to such successor
trustee all the rights and powers with respect to the trustee so ceasing to act.
Upon written request of any such successor trustee, the Company and the
Guarantor shall execute any and all instruments in writing for more fully and
certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon
all property or funds held or collected by such trustee to secure any amounts
then due it pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Company
transmit notice of the succession of such trustee hereunder to the Holders of
Securities in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
Section 7.12. Successor to Trustee by Merger, 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 qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 7.13. Preferential Collection of Claims Against Company or
Guarantor. (a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or of the Guarantor or any other obligor on
the Securities within three months prior to a default, as defined in subsection
(c) of this Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities for which it is acting as Trustee, and the Holders of other indenture
securities (as defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period,
and valid as against the Company, the Guarantor or such other obligor
on the Securities and their respective other creditors, except any such
reduction resulting from the receipt or disposition of any property
described in paragraph (2) of this subsection, or from the exercise of
any right of set-off which the Trustee could have exercised if a
petition in bankruptcy had been filed by or against the Company or the
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Guarantor or such other obligor on the Securities, as the case may be,
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property if disposed of, subject, however, to the rights, if any,
of the Company or the Guarantor or such other obligor on the
Securities, as the case may be, and their respective other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company or the
Guarantor or such other obligor on the Securities, as the case may be)
who is liable thereon, and (ii) the proceeds of the bona fide sale of
any claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company or the Guarantor or such other obligor on the
Securities, as the case may be, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State laws;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Securities for which it is acting as Trustee, and
the Holders of other indenture securities in such manner that the Trustee, such
Securityholders and the Holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims
filed against the Company or the Guarantor or such other obligor on the
Securities, as the case may be, in bankruptcy or receivership or in proceedings
for reorganization pursuant to Title 11 of the United States Code or applicable
State law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company or the Guarantor or such other obligor on the Securities, as
the case may be, of the funds and property in such special account and before
crediting to the respective claims of the Trustee,
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such Securityholders, and the Holders of other indenture securities dividends
on claims filed against the Company or the Guarantor or such other obligor on
the Securities, as the case may be, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code
or applicable State law, but after crediting thereon receipts on account of the
indebtedness represented by their respective claims from all sources other than
from such dividends and from the funds and property so held in such special
account. As used in this paragraph, with respect to any claim, the term
"dividends" shall include any distribution with respect to such claim in
bankruptcy or receivership or in proceedings for reorganization pursuant to
Title 11 of the United States Code or applicable State law, whether such
distribution is made in cash, securities or other property, but shall not
include any such distribution with respect to the secured portion, if any,
of such claim. The court in which such bankruptcy, receivership or proceeding
for reorganization is pending shall have jurisdiction (i) to apportion among
the Trustee, such Securityholders, and the Holders of other indenture
securities, in accordance with the provisions of this paragraph, the funds and
property held in such special account and the proceeds thereof, or (ii) in lieu
of such apportionment in whole or in part, to give to the provisions of this
paragraph due consideration in determining the fairness of the distributions to
be made to the Trustee, such Securityholders and the Holders of other indenture
securities with respect to their respective claims, in which event it shall not
be necessary to liquidate or to appraise the value of any securities or other
property held in such special account or as security for any such claim, or to
make a specific allocation of such distributions as between the secured and
unsecured portions of such claim, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a) of this
Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.04(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
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(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company or the Guarantor or any other obligor on the
Securities; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be accorded
the following definitions:
(1) the term "default" shall mean any failure to make payment
in full of the principal of and any premium or interest on any of the
Securities or on the other indenture securities when and as such
principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Company or the Guarantor or any other obligor
on the Securities is an "obligor" (as defined in the Trust Indenture
Act of 1939, as amended) Outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company or the Guarantor or any other
obligor on the Securities for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or the Guarantor or any other
obligor on the Securities arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in principal
amount of the Securities of any or all Series may take any action (including the
making of any demand or request, the giving of any notice, consent or waiver or
the taking of any other action), the fact that at the time of taking any such
action the Holders of such specified percentage have joined therein may be
evidenced (a) by any instrument or any number of instruments of similar tenor
executed by such Securityholders in Person or by agent or proxy appointed in
writing, or (b) by
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the record of such Holders of Securities voting in favor hereof at any meeting
of such Securityholders duly called and held in accordance with the provisions
of Article Nine, or (c) by a combination of such instrument or instruments and
any such record of such a meeting of such Securityholders.
Section 8.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Securityholder or such Holder's agent or
proxy and proof of the holding by any Person of any of the Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of fully registered Securities of any Series
(including Global Securities) shall be proved by the Register of such
Securities of such Series, or by certificates of the Security registrar
or registrars thereof.
(c) The amount of bearer Securities held by any Person, the
numbers of such Securities and the date of such Person's holding the
same may be proved by the production of such Securities or by a
certificate in form satisfactory to the Trustee, executed by any trust
company, bank, banker or member of a national securities exchange, as
depository.
The Trustee shall not be bound to recognize any Person as a
Securityholder unless and until such Person's title to the Securities held by it
is proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional proof
of any matter referred to in this Section 8.02 as it shall deem reasonable.
Section 8.03. Who May be Deemed Owners of Securities. Prior to due
presentment for transfer of any fully registered Security, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee may deem and treat the Person in whose name such Security shall be
registered upon the Register of Securities of the Series of which such Security
is a part as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and interest, subject to Section 2.03, on such Security and for all other
purposes; and neither the Company, the Guarantor or the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Holder for the time being, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability of moneys payable upon any such
Security. Ownership of bearer Securities shall be proved as provided in Section
8.02(c).
If the Securities of any Series are issued in the form of one or more
Global Securities, the Depository therefor may grant proxies to Persons having a
beneficial ownership in such Global Security or Securities for purposes of
voting or otherwise responding to any request for consent, waiver or other
action which the Holder of such Security is entitled to grant or take under this
Indenture and the Trustee shall accept such proxies for the purposes granted;
provided, that the Trustee, the Company and the Guarantor shall not have any
obligation with respect to the grant of or solicitation by the Depository of
such proxies.
Section 8.04. Securities Owned by the Company, the Guarantor or
Controlled or Controlling Persons Disregarded for Certain Purposes. In
determining whether the Holders of the requisite principal amount of Securities
have concurred in any demand, direction, request, notice, vote, consent, waiver
or other action under this Indenture, Securities which are owned by the Company,
the Guarantor or any other obligor on the Securities or by any Person directly
or indirectly controlling or controlled by or under direct or indirect
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common control with the Company, the Guarantor or any other obligor on the
Securities shall be disregarded and deemed not to be Outstanding for the purpose
of any such determination, provided that for the purposes of determining whether
the Trustee shall be protected in relying on any such demand, direction,
request, notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee assigned to its principal office knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section 8.04,
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, the Guarantor or any such other obligor.
Upon request of the Trustee, the Company or the Guarantor, as the case
may be, shall furnish to the Trustee promptly an Officers' Certificate of the
Company or the Guarantor, as the case may be, listing and identifying all
Securities, if any, known by the Company or the Guarantor to be owned or held by
or for the account of the Company or the Guarantor, as the case may be, or any
other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or the Guarantor, as the case may be, or any other obligor on the
Securities; and, subject to the provisions of Section 7.01, the Trustee shall be
entitled to accept such Officers' Certificate of the Company or the Guarantor,
as the case may be, as conclusive evidence of the facts therein set forth and of
the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
Section 8.05. Instruments Executed by Securityholders Bind Future
Holders. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the Holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in principal amount of the Securities of
any or all Series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Guarantor, the Trustee and
the Holders of all of the Securities of such Series subject, however, to the
provisions of Section 7.01.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for Which Meetings May be Called. A meeting of
Holders of Securities of any or all Series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following
purposes:
(1) to give any notice to the Company, to the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of any or all Series, as the
case may be, pursuant to any of the provisions of Article Six;
(2) to remove the Trustee and appoint a successor trustee pursuant to the
provisions of Article Seven;
(3) to consent to the execution of a Supplemental Indenture pursuant to
the provisions of Section 10.02; or
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(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified principal amount of the Securities of any or all
Series, as the case may be, under any other provision of this Indenture or under
applicable law.
Section 9.02. Manner of Calling Meetings. The Trustee may at any time
call a meeting of Securityholders to take any action specified in Section 9.01,
to be held at such time and at such place in The City of New York, State of New
York, as the Trustee shall determine. Notice of every meeting of
Securityholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed not less
than 20 nor more than 60 days prior to the date fixed for the meeting.
Section 9.03. Call of Meeting by Company, the Guarantor or
Securityholders. In case at any time the Company, or the Guarantor, as the case
may be, pursuant to a resolution of its Board of Directors, or the Holders of
not less than ten percent in principal amount of the Securities of any or all
Series, as the case may be, then Outstanding, shall have requested the Trustee
to call a meeting of Holders of Securities of any or all Series, as the case may
be, to take any action authorized in Section 9.01 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the Guarantor or such Holders of
Securities in the amount above specified may determine the time and place in the
City and County of San Francisco, California or The City of New York, New York
for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Securityholders a Person shall (a) be a Holder of one or
more Securities with respect to which the meeting is being held; or (b) be a
Person appointed by an instrument in writing as proxy by such Holder of one or
more Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company or the Guarantor and their
counsel.
Section 9.05. Regulations May be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment. Notwithstanding any other provision of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 8.02 and the
appointment of any proxy shall be proved in the manner specified in said Section
8.02; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face, may be presumed valid and
genuine without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company, the Guarantor or by Securityholders as provided in Section 9.03, in
which case the Company, the Guarantor or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by majority vote of the meeting.
Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Original Issue Discount Securities, such principal amount
shall be equal to such portion of the principal amount as may be specified in
the terms of such Series) of Securities held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue
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of Securities held by such Person or instruments in writing as aforesaid duly
designating such Person as the Person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called pursuant to the
provisions of Section 9.02 or 9.03 may be adjourned from time to time and the
meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
Section 9.06. Manner of Voting at Meetings and Record to be Kept. The
vote upon any resolution submitted to any meeting of Securityholders shall be by
written ballots on which shall be subscribed the signatures of the Holders of
Securities or of their representatives by proxy and the principal amount or
principal amounts of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in triplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02. The record shall show the principal amount or
principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the triplicates shall
be delivered to the Company, one to the Guarantor, and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. Exercise of Rights to Trustee and Securityholders Not to
be Hindered or Delayed. Nothing in this Article contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrances or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any of
the provisions of this Indenture or of the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered Into Without Consent of Securityholders. Without the consent of the
Holders of any Securities, the Company, the Guarantor and the Trustee may from
time to time and at any time enter into one or more Supplemental Indentures
(which shall comply with the provisions of the Trust Indenture Act of 1939 as
then in effect) for one or more of the following purposes:
(a) if deemed appropriate by the Company or the Guarantor, as the case
may be, or required by law, to evidence the succession of another corporation to
the Company or to the Guarantor or respective successive successions and the
assumption by the successor corporation of the covenants, agreements and
obligations of the Company or the Guarantor pursuant to Articles Four and Eleven
hereof,
(b) to add to the covenants of the Company or the Guarantor such
further covenants, restrictions or conditions as their Boards of Directors,
respectively, and the Trustee shall consider to be for the protection of the
Holders of all or any Series of Securities (and if such covenants, restrictions
or conditions are to be for the benefit of less than all Series of Securities,
stating that such covenants, restrictions or conditions are
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expressly being included solely for the benefit of such Series), and to make
the occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect to any such additional covenant, restriction or condition such
Supplemental Indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default
or may limit the remedies available to the Trustee upon such default,
(c) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in (i)
global form or (ii) bearer form, registerable or not registerable as to
principal or principal and interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any Series Outstanding created prior to the
execution of such Supplemental Indenture which is entitled to the benefit of
such provision,
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.01 and 2.02,
(f) to appoint, at the request of the Trustee, a successor Trustee for
a particular Series of Securities to act as such pursuant to the provisions of
this Indenture and to add to or change the provisions of this Indenture to such
extent as shall be necessary to facilitate the performance of the duties of such
successor Trustee and
(g) to cure any ambiguity or to correct or supplement any provisions
contained herein or in any Supplemental Indenture which may be defective or
inconsistent with any other provision contained herein or in any Supplemental
Indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture or any Supplemental Indenture which shall not
adversely affect the interests of the Holders of the Securities at the time
Outstanding.
Section 10.02. Modification of Indenture with Consent of Holders of
Securities. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in principal amount of the Securities of all
Series at the time Outstanding (determined as provided in Section 8.04) affected
by such Supplemental Indenture (voting as one class), the Company, the Guarantor
and the Trustee may from time to time and at any time enter into one or more
Supplemental Indentures (which shall comply with the provisions of the Trust
Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any Supplemental Indenture or of modifying in any manner
the rights of the Holders of the Securities of each such Series; provided,
however, that no such Supplemental Indenture shall, without the consent of the
Holders of each Outstanding Security affected thereby:
(a) Change the fixed maturity or Redemption Date of any Security or
reduce the rate of interest thereon or the method of determining such rate of
interest or extend the time of payment of interest or reduce the principal
amount (including the amount of principal of an Original Issue Discount Security
that would be due upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 hereof) thereof or reduce any premium payable upon the
redemption thereof, or change the coin or currency in which any Security or the
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 Redemption Date), or deprive the Holders of
any Security of any of the benefits of the Guarantee or
(b) Reduce the percentage in principal amount of the Outstanding
Securities the consent of the Holders of which is required for any such
Supplemental Indenture, or the consent of the Holders of which 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
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(c) Change the time of payment or reduce the amount of any minimum
sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02 of this
Indenture, 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 Security affected thereby.
A Supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any Supplemental Indenture pursuant to the provisions of this Section
10.02, the Company shall mail a notice to the Holders of Securities of each
Series so affected, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplemental Indenture.
Section 10.03. Effect of Supplemental Indentures. Upon the execution of
any Supplemental Indenture pursuant to the provisions of this Article Ten, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company, the Guarantor
and the Holders of Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such Supplemental Indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee shall be entitled to receive, and subject to the provisions
of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel as
conclusive evidence that any such Supplemental Indenture complies with the
provisions of this Article Ten and stating that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Company and the Guarantor in the
manner and subject to any conditions specified in such Opinion of Counsel, will
be valid and binding obligations of the Company and the Guarantor, except as any
rights thereunder may be limited by bankruptcy, insolvency and other similar
laws affecting the enforcement of creditors' rights generally and by general
equity principles.
Section 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution of any
Supplemental Indenture pursuant to the provisions of this Article Ten, or after
any action taken at a Securityholders' meeting pursuant to Article Nine, may
bear a notation in form approved by the Trustee as to any matter provided for in
such Supplemental Indenture or as to any action taken at any such meeting. If
the Company, the Guarantor or the Trustee shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Boards of
Directors of the Company and the Guarantor, respectively, to any modification of
this Indenture contained in any such Supplemental Indenture may be prepared by
the Company and the Guarantor, authenticated by the Trustee and delivered in
exchange for the Securities then Outstanding.
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ARTICLE ELEVEN
PARTICULAR COVENANTS OF THE COMPANY
Section 11.01. Payment of Principal of and Interest on Securities. The
Company covenants that it will duly and punctually pay or cause to be paid the
principal of and any interest and premium on each of the Securities in
accordance with the terms of the Securities and this Indenture. Except with
respect to any Global Securities, if the fully registered Securities of any
Series bear interest, each installment of interest on the Securities of such
Series may at the option of the Company be paid by mailing a check or checks for
such interest payable to the Person entitled thereto pursuant to Section 2.03 to
the address of such Person as it appears on the Register of the Securities of
such Series on the applicable Record Date for such interest payment.
Section 11.02. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange and Payment of Securities. So long as any of the
Securities shall remain Outstanding, the Company covenants that it will maintain
an office or agency in either The City of New York, State of New York, or the
City and County of San Francisco, State of California, where the Securities may
be presented for registration, exchange and transfer as in this Indenture
provided, and where notices and demand to or upon the Company in respect of the
Securities or of this Indenture may be served, and where the Securities may be
presented for payment. In case the Company shall designate and maintain some
office or agency other than a previously designated office or agency, it shall
give the Trustee notice thereof. In case the Company shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof to the Trustee, presentations and demands may
be made and notices may be served at the principal office of the Trustee.
In addition to such office or agency, the Company may from time to time
constitute and appoint one or more other offices or agencies for such purposes
with respect to Securities of any Series, and one or more paying agents for the
payment of Securities of any Series, in such cities or in one or more other
cities, and may from time to time rescind such appointments, as the Company may
deem desirable or expedient, and as to which the Company has notified the
Trustee.
Section 11.03. Assignment; Substitution. The rights and obligations of
the Company under this Indenture and under the Outstanding Securities may be
assigned or transferred to another Person with which the Company is consolidated
or merged or which acquires by conveyance or transfer any of the properties or
assets of the Company or to the Guarantor or to a corporation, all of the
outstanding shares of which (other than directors' qualifying shares) are owned
directly or indirectly by the Guarantor and, provided that the requirements of
this Section 11.03 for such assignment or transfer shall have been met, upon any
such assignment or transfer, all of the obligations of the Company under this
Indenture and the Securities shall cease and the Company shall be released from
its liability as obligor on the Securities and from all other obligations under
this Indenture. In connection with any assignment other than to the Guarantor,
the provisions of Sections 4.01 through 4.08 of Article Four relating to the
guarantee by the Guarantor, shall remain in full force and effect or a new
guaranty agreement of the Guarantor containing provisions substantially the same
as those set forth in Sections 4.01 through 4.08 of Article Four hereof shall
have been executed. Any successor to the Company shall be incorporated or
organized and, in either case, existing under the laws of the United States of
America or one of the States of the United States of America or Canada or one of
the Provinces of Canada and such successor shall assume in a Supplemental
Indenture all of the obligations of the Company. In the event the Company
assigns all of its rights and obligations in respect of this Indenture and all
Outstanding Securities to the Guarantor, the covenants set forth in Sections
4.04, 4.05, 4.06, 4.07 and 4.08 of this Indenture and any other covenants of the
Guarantor included in any Supplemental Indenture relating to any series of
Securities shall remain in full force and effect and the Guarantor shall assume
in a Supplemental Indenture all of the obligations of the Company.
Section 11.04. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner
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provided in Section 7.10, a Trustee, so that there shall at all times be a
Trustee with respect to the Outstanding Securities.
Section 11.05. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the
Trustee with respect to Securities of any Series, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the
provisions of this Section 11.05 and Section 12.05,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of or premium, if any
or interest, if any, on the Securities of such Series (whether
such sums have been paid to it by the Company or by any other
obligor on the Securities of such Series) in trust for the
benefit of the Holders of the Securities entitled to such
principal or interest and will notify the Trustee of the
receipt of sums to be so held,
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Securities of such Series) to make any payment of the
principal of or interest on the Securities of such Series when
the same shall be due and payable, and
(3) that it will at any time during the continuance
of any Event of Default, upon the written request of the
Trustee, deliver to the Trustee all sums so held in trust by
it.
(b) Whenever the Company shall have one or more Paying Agents
with respect to the Securities of any Series, it will, prior to each
due date of the principal of or any interest on the Securities of such
Series, deposit with a Paying Agent of such Series a sum sufficient to
pay the principal or interest so becoming due, such sum to be held in
trust for the benefit of the Holders of Securities entitled to such
principal or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure
so to act.
(c) If the Company shall act as its own Paying Agent with
respect to the Securities of any Series, it will, on or before each
Stated Maturity of the principal of or any interest on the Securities
of such Series, set aside, segregate and hold in trust for the benefit
of the Holders of the Securities of such Series, a sum sufficient to
pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on
the Securities of such Series to take such action and will at any time
during the continuance of any Event of Default, upon the written
request of the Trustee, deliver to the Trustee all sums so held in
trust by it.
(d) Anything in this Section 11.05 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture with respect
to one or more or all Series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust
for such Series by it, or any Paying Agent hereunder, as required by
this Section 11.05, and such sums are to be held by the Trustee upon
the trust herein contained.
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ARTICLE TWELVE
DISCHARGE; DEFEASANCE
Section 12.01. Discharge of Indenture. If the Company or the Guarantor
shall pay and discharge or cause to be paid or discharged the entire
indebtedness on all Outstanding Securities by paying or causing to be paid the
principal of (including redemption premium, if any) and interest on the
Outstanding Securities, as and when the same become due and payable or by
delivering to the Trustee, for cancellation by it, all Outstanding Securities,
and if the Company or the Guarantor shall also pay or cause to be paid all other
sums payable hereunder by the Company or the Guarantor, thereupon, upon written
request of the Company or the Guarantor, and upon receipt by the Trustee of such
certificates, if any, as the Trustee shall reasonably require, to the effect
that all conditions precedent to the satisfaction and discharge of the Company's
or the Guarantor's, as the case may be, obligations under this Indenture have
been complied with, this Indenture shall be discharged and terminated and the
Trustee shall forthwith execute proper instruments acknowledging satisfaction of
and discharging and terminating this Indenture with respect to the Company's and
the Guarantor's obligations hereunder and any such other interests.
The Company or the Guarantor may at any time surrender to the Trustee
for cancellation by it any Securities previously authenticated and delivered
which the Company or the Guarantor may have acquired in any manner whatsoever,
and such Securities, upon such surrender and cancellation, shall be deemed to be
paid and retired.
Section 12.02. Discharge of Liability on Securities. Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities of the
kind and in the necessary amount (as provided in Section 12.04 of this
Indenture) to pay or redeem Outstanding Securities (whether upon or prior to
their maturity or the Redemption Date of such Securities, provided that, if such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three hereof provided or
provision satisfactory to the Trustee shall have been made for the giving of
such notice), the obligation of the Company duly and punctually to pay or cause
to be paid the principal of and any interest and premium in respect of such
Securities and all liability of the Company and the Guarantor in respect of such
payment shall cease, terminate and be completely discharged and the Holders
thereof shall thereafter be entitled only to payment out of the money or
securities deposited with the Trustee as aforesaid for their payment; provided,
however, that this discharge of the Company's obligation so to pay and of the
liability of the Company and the Guarantor in respect of such payment shall not
occur unless the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such discharge.
Section 12.03. Discharge of Certain Covenants and Other Obligations.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section 12.04
of this Indenture) to pay or redeem Outstanding Securities of one or more Series
(whether upon or prior to their maturity or the Redemption Date of such
Securities, provided that, if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three hereof provided or provision satisfactory to the Trustee shall have been
made for the giving of such notice), all of the obligations, covenants and
agreements of the Guarantor with respect to such Securities under Sections 4.04,
4.05, 4.06 and 4.07 hereof shall cease, terminate and be completely discharged.
In addition, upon such deposit any additional covenants and agreement of the
Guarantor which may be set forth in any Supplemental Indenture and applicable to
such Securities shall also cease, terminate and be completely discharged, unless
the Guarantor shall deliver to the Trustee a written election to have any such
covenants continue.
Section 12.04. Discharge of Certain Obligations Upon Deposit of Money
or Securities with Trustee. The conditions for deposit of money or securities
contained in Sections 12.02 and 12.03 shall have been satisfied whenever with
respect to any Securities denominated in United States Dollars, the Company
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or the Guarantor shall have deposited or caused to be deposited irrevocably in
trust with the Trustee dedicated solely to the benefit of the Holders of such
Securities:
(a) Lawful money of the United States of America in an amount
equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except that, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
The conditions for deposit of money or securities contained in Sections 12.02
and 12.03 shall have been satisfied whenever with respect to any Securities
denominated in one or more currencies or composite currency other than United
States Dollars, the Company or the Guarantor shall have deposited or caused to
be deposited irrevocably in trust with the Trustee dedicated solely to the
benefit of the Holders of such Securities:
(i) Lawful money in such currency, currencies or composite
currency in which such Securities are payable and in an amount equal to
the principal amount of such Securities and all unpaid interest thereon
to maturity, except that, in the case of Securities which are to be
redeemed prior to maturity, the amount so to be deposited or held shall
be the principal amount of such Securities and interest thereon to the
Redemption Date, together with the redemption premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Securities are
payable, for which obligations the full faith and credit of the
government is pledged (which obligations are not subject to redemption
prior to maturity at the option of the issuer) or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
such government (which obligations are not subject to redemption prior
to maturity at the option of the issuer), in either case, in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
Section 12.05. Unclaimed Moneys. Any moneys deposited with or paid to
the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws, and the Holder of such Security
shall thereafter look only to such Persons for any payment which such Holder may
be entitled to collect and all liability of the Trustee and such Paying Agent
with respect to such moneys shall thereupon cease.
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ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 13.01. Incorporators, Stockholders, Officers and Directors of
Company and Guarantor Exempt From Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or the Guarantor, either directly or
through the Company or the Guarantor, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
the Guarantor because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of the Company or the Guarantor
Bound by Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company or the Guarantor shall
bind their successors and assigns, whether so expressed or not.
Section 14.02. Notices; Effectiveness. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company or the
Guarantor, or by the Company, the Guarantor or by the Holders of Securities to
the Trustee or upon the Depository by the Company or the Guarantor or the
Trustee may be electronically communicated or hand delivered or sent by
overnight courier, addressed to the relevant party as provided in this Section
14.02.
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All communications intended for the Company shall be sent to:
Chevron Capital Corporation
6001 Bollinger Canyon Road
Building E
San Ramon, CA 94583
Attention: Treasurer
Fax Number: (925) 842-8090
Copies of all communications intended for the Company shall be sent to the
Guarantor.
All communications intended for the Guarantor shall be sent to:
Chevron Corporation
6001 Bollinger Canyon Road
Building E
San Ramon, CA 94583
Attention: Treasurer
Fax Number: (925) 842-8090
All communications intended for the Trustee shall be sent to:
The Chase Manhattan Bank
450 West 33rd Street
15th Floor
New York, New York 10001
Attention: Corporate Trust Department
Fax Number: (212) 946-8158
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 14.02.
For all purposes of this Indenture, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a Business Day in the
city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day,
(b) if sent by telex, on the day the recipient's answerback is
received unless that day is not a Local Business Day, in which case on
the next succeeding Local Business Day,
(c) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding
Local Business Day.
Any notice, direction, request, demand, consent or waiver by the
Company, the Guarantor, any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given, made or filed, for all
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purposes, if given, made or filed in writing with the Trustee in accordance
with the provisions of this Section 14.02.
Any notice, request, consent or waiver by the Company, the Guarantor or
the Trustee upon the Depository shall have been sufficiently given, made or
filed, for all purposes, if given or made in accordance with the provisions of
this Section 14.02 at the address shown for such Depository in the Register or
at such other address as the Depository shall have provided for purposes of
notice.
Section 14.03. Compliance Certificates and Opinions. Upon any request
or application by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company or the Guarantor shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he had made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company or
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters, upon the certificate, statement
or opinion of or representations by an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows
that the certificate, statement or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Company, the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate or opinion of any firm of
independent public accountants filed with the Trustee shall contain a statement
that such firm is independent.
Section 14.04. Days on Which Payment to be Made, Notice Given or Other
Action Taken. If any date on which a payment is to be made, notice given or
other action taken hereunder is a Saturday, Sunday or legal holiday in the state
in which or from which the payment, notice or other action is to be made, given
or taken, then such payment, notice or other action shall be made, given or
taken on the next succeeding business day in such state, and in the case of any
payment, no interest shall accrue for the delay.
56
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Section 14.05. Provisions Required by Trust Indenture Act of 1939 to
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
Section 14.06. Governing Law. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 14.07. Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Securityholders. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to give any
Person, firm or corporation, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the Holders of the Securities.
Section 14.08. Indenture May be Executed in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
THE CHASE MANHATTAN BANK hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, CHEVRON CAPITAL CORPORATION and CHEVRON CORPORATION
and THE CHASE MANHATTAN BANK have each caused this Indenture to be duly
executed, all as of the day and year first written above.
CHEVRON CAPITAL CORPORATION
By ___________________________________________
CHEVRON CORPORATION
By ___________________________________________
THE CHASE MANHATTAN BANK, as Trustee
By ___________________________________________
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EXHIBIT 4.4
================================================================================
INDENTURE
AMONG
CHEVRON CANADA CAPITAL COMPANY, As Issuer
CHEVRON CORPORATION, As Guarantor
and
____________________, As Trustee
Dated as of __________, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined.....................................2
Attributable Debt...................................................2
Board of Directors..................................................2
Business Day........................................................2
Certified Resolution................................................3
Commission..........................................................3
Company 3
Consolidated Adjusted Tangible Assets...............................3
Depository..........................................................3
Event of Default....................................................3
Executive Committee.................................................3
Global Security.....................................................4
Guarantee...........................................................4
Guarantor...........................................................4
Indenture...........................................................4
Interest Payment Date...............................................4
Officers' Certificate...............................................4
Opinion of Counsel..................................................4
Original Issue Discount Security....................................4
Outstanding.........................................................5
Paying Agent........................................................5
Periodic Offering...................................................5
Person 5
Principal Property..................................................5
Record Date.........................................................6
Redemption Date.....................................................6
Redemption Price....................................................6
Register 6
Responsible Officer.................................................6
Restricted Subsidiary...............................................6
Security or Securities..............................................6
Securityholder; Holder..............................................6
Series 7
Stated Maturity.....................................................7
Subsidiary..........................................................7
Supplemental Indenture..............................................7
Trustee 7
Trust Indenture Act of 1939.........................................7
United States Dollars...............................................7
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount, Series, Execution, Authentication and
Delivery of Securities....................................7
Section 2.02. Form of Securities and Trustee's Certificate
of Authentication........................................11
<PAGE>
Section 2.03. Denominations; Payment of Interest on Securities.........11
Section 2.04. Execution of Securities..................................12
Section 2.05. Registration, Transfer and Exchange of Securities........13
Section 2.06. Temporary Securities.....................................14
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities..........14
Section 2.08. Cancellation and Destruction of Surrendered
Securities...............................................14
Section 2.09. Securities in Global Form; Depositories..................15
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities.................................16
Section 3.02. Notice of Redemption.....................................16
Section 3.03. Selection of Securities for Redemption...................16
Section 3.04. Partial Redemption of Registered Security................16
Section 3.05. Effect of Redemption.....................................17
ARTICLE FOUR
THE GUARANTEE BY AND COVENANTS OF THE GUARANTOR
Section 4.01. Guarantee................................................17
Section 4.02. Proceedings Against the Guarantor........................19
Section 4.03. Guarantee for Benefit of Securityholders.................19
Section 4.04. Corporate Existence of Guarantor; Consolidation,
Merger, Sale or Transfer.................................19
Section 4.05. Securities to Be Secured in Certain Events...............19
Section 4.06. Limitations on Liens.....................................20
Section 4.07. Limitation on Sale and Leaseback.........................21
Section 4.08. Notice of Default........................................22
Section 4.09. Waiver of Certain Covenants of Guarantor.................22
<PAGE>
ARTICLE FIVE
SECURITYHOLDERS' LISTS
Section 5.01. Company to Furnish Trustee Information As to
the Names and Addresses of Securityholders...............22
Section 5.02. Preservation of Information; Communication
to Securityholders.......................................22
Section 5.03. Reports by Company and Guarantor.........................23
Section 5.04. Reports by Trustee.......................................24
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration, Waiver of Default
and Restoration of Position and Rights...................25
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount
Due on Securities on Default in Payment
of Interest or Principal.................................27
Section 6.03. Trustee May File Proofs of Claim.........................28
Section 6.04. Trustee May Enforce Claims Without Possession
of Securities............................................28
Section 6.05. Application of Moneys Collected By Trustee...............28
Section 6.06. Limitation on Suits By Holders of Securities.............29
Section 6.07. Rights and Remedies Cumulative...........................29
Section 6.08. Delay or Omission Not Waiver.............................30
Section 6.09. Control By Holders; Waiver of Past Defaults..............30
Section 6.10. Trustee to Give Notice of Defaults Known to It,
But May Withhold in Certain Circumstances................30
Section 6.11. Requirement of an Undertaking to Pay Costs in
Certain Suits Under the Indenture or Against
the Trustee..............................................31
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee...........31
Section 7.02. Certain Rights of Trustee................................32
Section 7.03. Trustee Not Responsible for Recitals or Application
of Proceeds..............................................33
Section 7.04. Trustee May Own Securities...............................33
Section 7.05. Moneys Received by Trustee to be Held in Trust...........33
<PAGE>
Section 7.06. Trustee Entitled to Compensation, Reimbursement
and Indemnity............................................33
Section 7.07. Right of Trustee to Rely on Officers' Certificate
Where No Other Evidence Specifically Prescribed..........33
Section 7.08. Disqualification; Conflicting Interest...................34
Section 7.09. Requirements for Eligibility of Trustee..................39
Section 7.10. Resignation and Removal of Trustee; Appointment of
Successor................................................39
Section 7.11. Acceptance of Appointment by Successor Trustee...........40
Section 7.12. Successor to Trustee by Merger, Consolidation or
Succession to Business...................................40
Section 7.13. Preferential Collection of Claims Against Company
or Guarantor.............................................41
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders....................44
Section 8.02. Proof of Execution of Instruments and of Holding
of Securities............................................44
Section 8.03. Who May be Deemed Owners of Securities...................45
Section 8.04. Securities Owned by the Company, the Guarantor
or Controlled or Controlling Persons Disregarded for
Certain Purposes.........................................45
Section 8.05. Instruments Executed by Securityholders Bind
Future Holders...........................................45
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for Which Meetings May be Called................46
Section 9.02. Manner of Calling Meetings...............................46
Section 9.03. Call of Meeting by Company, the Guarantor
or Securityholders.......................................46
Section 9.04. Who May Attend and Vote at Meetings......................47
Section 9.05. Regulations May be Made by Trustee; Conduct of
the Meeting; Voting Rights; Adjournment.................47
Section 9.06. Manner of Voting at Meetings and Record to be Kept.......47
Section 9.07. Exercise of Rights to Trustee and Securityholders
Not to be Hindered or Delayed............................48
<PAGE>
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered Into Without Consent of Securityholders.........48
Section 10.02. Modification of Indenture with Consent of Holders
of Securities...........................................49
Section 10.03. Effect of Supplemental Indentures......................50
Section 10.04. Securities May Bear Notation of Changes by
Supplemental Indentures.................................50
ARTICLE ELEVEN
PARTICULAR COVENANTS OF THE COMPANY
Section 11.01. Payment of Principal of and Interest on Securities......50
Section 11.02. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange and Payment of Securities........50
Section 11.03. Assignment; Substitution................................51
Section 11.04. Appointment to Fill a Vacancy in the Office
of Trustee..............................................51
Section 11.05. Duties of Paying Agent..................................51
ARTICLE TWELVE
DISCHARGE; DEFEASANCE
Section 12.01. Discharge of Indenture..................................52
Section 12.02. Discharge of Liability on Securities....................52
Section 12.03. Discharge of Certain Covenants and Other Obligations....53
Section 12.04. Discharge of Certain Obligations Upon Deposit
of Money or Securities with Trustee.....................53
Section 12.05. Unclaimed Moneys........................................54
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Incorporators, Stockholders, Officers and Directors
of Company and Guarantor Exempt From Individual
Liability...............................................54
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of the Company or the
Guarantor Bound by Indenture............................55
<PAGE>
Section 14.02. Notices; Effectiveness..................................55
Section 14.03. Compliance Certificates and Opinions....................56
Section 14.04. Days on Which Payment to be Made, Notice
Given or Other Action Taken.............................57
Section 14.05. Provisions Required by Trust Indenture Act of 1939
to Control..............................................57
Section 14.06. Governing Law...........................................57
Section 14.07. Provisions of the Indenture and Securities
for the Sole Benefit of the Parties and the
Securityholders.........................................57
Section 14.08. Indenture May be Executed in Counterparts...............57
SIGNATURES...................................................................57
<PAGE>
TABLE SHOWING REFLECTION IN THIS INDENTURE OF
CERTAIN PROVISIONS OF THE TRUST INDENTURE ACT OF 1939
--------------------------------
Section Section
of Act of Indenture
- --------- ----------------
310(a)(1) ................................................. 7.09
310(a)(2) ................................................. 7.09
310(a)(3) ................................................. Inapplicable
310(a)(4) ................................................. Inapplicable
310(a)(5) ................................................. 7.09
310(b) .................................................... 7.08, 7.10
310(c) .................................................... Inapplicable
311(a) .................................................... 7.13(a), 7.13(c)
311(b) .................................................... 7.13(b), 7.13(c)
311(c) .................................................... Inapplicable
312(a) .................................................... 5.01, 5.02(a)
312(b) .................................................... 5.02(b)
312(c) .................................................... 5.02(c)
313(a) .................................................... 5.04(a)
313(b)(1) ................................................. Inapplicable
313(b)(2) ................................................. 5.04(b)
313(c) .................................................... 5.04(c)
313(d) .................................................... 5.04(d)
314(a)(1) ................................................. 5.03(a)
314(a)(2) ................................................. 5.03(b)
314(a)(3) ................................................. 5.03(c)
314(a)(4) ................................................. 5.03(d)
314(b) .................................................... Inapplicable
314(c)(1) ................................................. 14.03
314(c)(2) ................................................. 14.03
314(c)(3) ................................................. 14.03
314(d) .................................................... Inapplicable
314(e) .................................................... 14.03
314(f) .................................................... 14.03
315(a) .................................................... 7.01
315(b) .................................................... 6.10
315(c) .................................................... 7.01
315(d) .................................................... 7.01
315(e) .................................................... 6.11
316(a)(1) ................................................. 6.09
316(a)(2) ................................................. Omitted
316(b) .................................................... 6.06
316(c) .................................................... 6.09
317(a) .................................................... 6.02, 6.03
317(b) .................................................... 11.05(a)
318(a) .................................................... 14.05
<PAGE>
INDENTURE
THIS INDENTURE, dated as of __________, 1999, among CHEVRON CANADA
CAPITAL COMPANY, a Delaware corporation (the "Company"), CHEVRON CORPORATION, a
Delaware corporation (the "Guarantor") and ____________________, a __________,
as Trustee (the "Trustee"),
WITNESSETH:
WHEREAS, the Company has duly authorized the issuance, execution and
delivery, from time to time, of its unsecured evidences of indebtedness
(hereinafter referred to as the "Securities"), without limit as to principal
amount, issuable in one or more Series, the amount and terms of each such Series
to be determined as hereinafter provided; and, to provide the terms and
conditions upon which the Securities are to be authenticated, issued and
delivered, the Company has duly authorized the execution of this Indenture;
WHEREAS, the Guarantor has duly authorized the execution and delivery
of this Indenture and its guarantee of the Securities as provided herein;
WHEREAS, all acts and things necessary to make the Securities, when
executed by the Company and authenticated and delivered by the Trustee as in
this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute this Indenture a valid indenture and agreement
according to its terms, have been done and performed, and the execution of this
Indenture and the issuance hereunder of the Securities have in all respects been
duly authorized; and
WHEREAS, all acts and things necessary to make the guarantee of the
Securities, as in this Indenture provided, the valid, binding and legal
obligations of the Guarantor, and to constitute each such guarantee a valid
guarantee and agreement according to its terms, have been done and performed,
and the execution by the Guarantor of this Indenture has in all respects been
duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Securities are to be issued, authenticated and delivered, and in consideration
of the premises and of the purchase and acceptance of the Securities by the
Holders thereof, the Company and the Guarantor covenant and agree with each
other and with the Trustee, for the equal and proportionate benefit of the
respective Holders from time to time of the Securities or of any Series thereof,
as follows:
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ARTICLE ONE
DEFINITIONS
Section 1.01. Certain Terms Defined. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article One have the meanings
assigned to them in this Article One, and include the plural as well as
the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act of 1939, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein shall
have the meanings assigned to them and all computations herein provided
for shall be made, in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles"
shall mean such principles as they exist at the date of applicability
thereof; 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.
Attributable Debt
The term "Attributable Debt" for a sale-leaseback transaction means the
lesser of (a) the fair value of the property subject to the transaction (as
determined by the Board of Directors of the Guarantor) or (b) the present value
of rent for the remaining term of the lease. Rent shall be discounted to present
value at the actual percentage rate inherent in such lease as determined in good
faith by the Guarantor, compounded semiannually. Rent is the lesser of (a) rent
for the remaining term of the lease assuming it is not terminated or (b) rent
from the date of determination until the first possible termination date plus
the termination payment then due, if any. The remaining term of a lease includes
any period for which the lease has been extended. Rent does not include (i)
amounts for maintenance, repairs, insurance, taxes, assessments and similar
charges or (ii) contingent rent, such as that based on sales. Rent may be
reduced by rent that any sublessee must pay from the date of determination for
all or part of the same property. For the purpose of any limitation contained in
this Indenture, there shall not be deemed to be any Attributable Debt with
respect to a sale-leaseback arrangement if the Guarantor or a Restricted
Subsidiary would be entitled pursuant to the provisions contained in Section
4.06 to issue, assume or guarantee "Debt" (as defined in Section 4.06) secured
by a lien on the property involved in such arrangement without equally and
ratably securing the Securities or the Guarantees.
Board of Directors
The term "Board of Directors" when used with reference to the Company
or the Guarantor shall mean the Board of Directors of the Company or the
Guarantor, as the case may be, or any duly authorized committee of such Board of
Directors.
Business Day
The term "Business Day" shall mean any day which is not a Saturday or
Sunday or which in the City of San Francisco and The City of New York is neither
a legal holiday nor a day on which banking institutions are authorized by law or
regulation to close.
2
<PAGE>
Certified Resolution
The term "Certified Resolution" shall mean a copy of a resolution of
the Board of Directors of the Company certified by the Secretary or by an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors of the Company and to be in full force and effect on the date of such
certification.
Commission
The term "Commission" shall mean 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
Indenture such Commission is not existing and performing the duties theretofore
assigned to it under the Trust Indenture Act of 1939, then the body performing
such duties at such time.
Company
The term "Company" shall mean Chevron Canada Capital Company, an
unlimited liability corporation organized under the laws of Nova Scotia, Canada,
until a successor corporation shall have become such pursuant to the applicable
provisions hereof, and thereafter "Company" shall mean such successor
corporation.
Consolidated Adjusted Tangible Assets
The term "Consolidated Adjusted Tangible Assets" shall mean the
consolidated total assets of the Guarantor and its subsidiaries as reflected in
the Guarantor's most recent consolidated balance sheet prepared in accordance
with the Guarantor's accounting policies and generally accepted accounting
principles, less (i) goodwill, trademarks, trade names, patents, unamortized
debt discount and expense, and other deferred charges, (ii) total current
liabilities except for (1) notes and loans payable, (2) current maturities of
long-term debt and (3) current maturities of obligations under capital leases,
(iii) deferred credits and other noncurrent obligations (including minority
interests in consolidated subsidiaries and reserves -- employee annuity plans
and other reserves which may hereafter be defined in the Guarantor's accounting
policies).
Depository
The term "Depository" shall mean, with respect to the Securities of any
Series issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Company pursuant to
Section 2.01 of this Indenture until a successor Depository shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter the
term "Depository" shall mean or include each Person who is then a Depository
hereunder, and if at any time there is more than one such Person, "Depository"
as used with respect to the Securities of any such Series shall mean the
Depository with respect to the Securities of that Series.
Event of Default
The term "Event of Default" with respect to Securities of any Series
shall mean any event specified as such in Section 6.01 and any other event as
may be established with respect to the securities of such Series as permitted by
Section 2.01. An Event of Default shall "exist" if an Event of Default shall
have occurred and be continuing.
Executive Committee
The term "Executive Committee" shall mean the Executive Committee of
the Guarantor as such committee may from time to time be established and
constituted pursuant to the provisions of the By-Laws of the Guarantor.
3
<PAGE>
Global Security
The term "Global Security" shall mean a Security evidencing all or a
portion of a Series of Securities, issued under this Indenture and delivered to
the Depository for such Series in accordance with Section 2.09 of this
Indenture, and bearing the legend prescribed in such Section 2.09.
Guarantee
The term "Guarantee" shall mean the guarantee of the Company's
obligations under the Securities by the Guarantor as provided in Article Four of
this Indenture.
Guarantor
The term "Guarantor" shall mean Chevron Corporation, a Delaware
corporation, until a successor corporation shall have become such pursuant to
the applicable provisions hereof, and thereafter "Guarantor" shall mean such
successor corporation.
Indenture
The term "Indenture" shall mean this instrument as originally executed,
or as it may from time to time be supplemented, modified or amended, as provided
herein, and shall include the form and terms of particular Series of Securities
established as contemplated by Section 2.01 and 2.02.
Interest Payment Date
The term "Interest Payment Date" when used with respect to any Security
means the Stated Maturity of an installment of interest on such Security.
Officers' Certificate
The term "Officers' Certificate" shall mean a certificate, in the case
of the Company, signed by the President, any Vice-President, the Treasurer, any
Deputy Treasurer, any Assistant Treasurer, the Secretary or any Assistant
Secretary of the Company and, in the case of the Guarantor, by the Chairman of
the Board of Directors, any Vice-Chairman of the Board of Directors or any
Vice-President, the Treasurer, any Deputy Treasurer, any Assistant Treasurer,
the Secretary or any Assistant Secretary of the Guarantor, and delivered to the
Trustee. Each such certificate shall include the statements provided for in
Section 14.03, if and to the extent required by the provisions of such Section.
Opinion of Counsel
The term "Opinion of Counsel" shall mean a written opinion of counsel
who may be counsel to the Company or to the Guarantor. Each such opinion shall
include the statements provided for in Section 14.03, if and to the extent
required by the provisions of such Section.
Original Issue Discount Security
The term "Original Issue Discount Security" shall mean (a) any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or (b) any other Security which for United States Federal income
tax purposes would be considered an original issue discount security.
4
<PAGE>
Outstanding
The term "Outstanding" when used with reference to Securities shall,
subject to the provisions of Section 8.04, mean, as of the date of
determination, all Securities theretofore authenticated and delivered under this
Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Securities for the payment or redemption of which moneys
in the necessary amount have been theretofore deposited with the
Trustee or with any Paying Agent (other than the Company or Guarantor)
in trust for the Holders of such Securities, provided that if such
Securities are to be redeemed, notice of such redemption has been duly
given as provided in Article Three hereof, or provision therefor
satisfactory to the Trustee has been made;
(c) Securities in exchange for or in lieu of which other
Securities shall have been authenticated and delivered under this
Indenture; and
(d) Securities alleged to have been destroyed, lost or stolen
which have been paid as provided in Section 2.07 hereof.
In determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, the principal amount of an Original Issue
Discount Security that shall be deemed to be Outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination as if a declaration of acceleration of the maturity
thereof pursuant to Section 6.01 had been made.
Paying Agent
The term "Paying Agent" means any Person authorized by the Company to
pay the principal of and any interest and premium on any Securities on behalf of
the Company.
Periodic Offering
The term "Periodic Offering" means an offering of Securities of a
Series, from time to time, the specific terms of which (including without
limitation, the rate or rates of interest, if any, thereon or any methods of
calculating such, the maturity date or dates thereof and any redemption
provisions with respect thereto) are to be determined by the Company or its
agents upon the issuance of such Series of Securities.
Person
The term "Person" shall mean an individual, a corporation, a
partnership, a joint venture, an association, a joint stock company, a trust, an
unincorporated organization, or a government or any agency, authority or
political subdivision thereof.
Principal Property
The term "Principal Property" means any oil or gas producing property
located in the United States, onshore or offshore, or any refinery or
manufacturing plant located in the United States in each case now owned or
hereafter acquired by the Guarantor or a Restricted Subsidiary, except any oil
or gas producing property, refinery or plant that in the opinion of the Board of
Directors of the Guarantor is not of material importance to the total business
conducted by the Guarantor and its consolidated Subsidiaries.
5
<PAGE>
Record Date
The term "Record Date" for the interest payable on any Interest Payment
Date on any Series of Securities shall mean the date specified as such in the
Securities of such Series.
Redemption Date
The term "Redemption Date" when used with respect to any Security to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
Redemption Price
The term "Redemption Price" when used with respect to any Security to
be redeemed means the price at which it is to be redeemed pursuant to this
Indenture. It includes any applicable premium but does not include installments
of interest whose Stated Maturity is on or before the Redemption Date.
Register
The term "Register" shall mean the books for the registration and
transfer of Securities which books are kept by the Trustee pursuant to Section
2.05.
Responsible Officer
The term "Responsible Officer" when used with respect to the Trustee
shall mean the chairman and vice-chairman of the board of directors, the
chairman and vice-chairman of the executive committee of said board, the
president, any vice-president or second vice-president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any corporate trust officer, the controller, any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer of
the Trustee to whom such matter is referred because of such person's knowledge
of and familiarity with the particular subject.
Restricted Subsidiary
The term "Restricted Subsidiary" means any Subsidiary that has
substantially all of its assets located in the United States of America and
which owns a Principal Property and in which the Guarantor's direct or indirect
capital investment together with the outstanding balance of (a) any loans and
advances made to such Subsidiary by the Guarantor or any other Subsidiary and
(b) any debt of such Subsidiary guaranteed by the Guarantor or any other
Subsidiary exceed $100,000,000.
Security or Securities
The terms "Security" or "Securities" shall mean any security or
securities of the Company without regard to Series, authenticated and delivered
under this Indenture.
Securityholder; Holder
The terms "Securityholder" or "Holder", whenever employed herein with
respect to a Security, shall mean the Person in whose name such Security shall
be registered on the Register.
Series
The term "Series" shall mean an issue of Securities under this
Indenture.
6
<PAGE>
Stated Maturity
The term "Stated Maturity" when used with respect to any Security or
any installment of interest thereon means the date specified in such as the
fixed date on which the principal of such Security or such installment of
interest is due and payable.
Subsidiary
The term "Subsidiary" means at any given time any corporation at least
a majority of the outstanding securities of which having ordinary voting power
(other than securities having such power only by reason of the happening of a
contingency) shall at such time be owned by the Guarantor or by one or more
Subsidiaries or by the Guarantor and one or more Subsidiaries.
Supplemental Indenture
The term "Supplemental Indenture" shall mean an indenture supplemental
hereto as such supplemental indenture may be originally executed, or as it may
from time to time be supplemented, modified or amended, as provided herein and
therein.
Trustee
The term "Trustee" shall mean ____________________, a ___________________,
until a successor Trustee shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean such
successor Trustee.
Trust Indenture Act of 1939
The term "Trust Indenture Act of 1939" shall mean the Trust Indenture
Act of 1939, as amended as of the date of this Indenture.
United States Dollars
The term "United States Dollars" shall mean the lawful currency of the
United States of America.
ARTICLE TWO
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION,
TRANSFER AND EXCHANGE OF SECURITIES
Section 2.01. Amount, Series, Execution, Authentication and Delivery of
Securities. The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is not limited. The
Securities may be issued in one or more Series.
(A) The following terms and provisions of each Series of Securities
shall be established by or pursuant to a resolution of the Board of Directors of
the Company and set forth in either a Certified Resolution or a Supplemental
Indenture:
(1) the designation of the Series of Securities (which shall
distinguish the Securities of such Series from all other Series of
Securities),
(2) any limit upon the aggregate principal amount of the
particular Series of Securities which may be executed, authenticated
and delivered under this Indenture; provided, however, that nothing
contained in this Section or elsewhere in this Indenture or
7
<PAGE>
in the Securities or in such Certified Resolution or in a Supplemental
Indenture is intended to or shall limit execution by the Company or
authentication and delivery by the Trustee of Securities under the
circumstances contemplated by Sections 2.05, 2.06, 2.07, 3.02, 3.04 and
10.04,
(3) the currency or currencies in which principal of and
interest and any premium on such Series of Securities shall be payable
(if other than in United States Dollars),
(4) the Stated Maturity for payment of principal of such
Series of Securities and any sinking fund or analogous provisions,
(5) the rate or rates at which such Series of Securities shall
bear interest or the method of calculating such rate or rates of
interest and the Interest Payment Dates for such Series of Securities,
(6) the place or places where such Series of Securities may be
presented for payment and for the other purposes provided in Section
11.02,
(7) any Redemption Price or Prices, the Redemption Date or
Dates and other applicable redemption or repurchase provisions for such
Series of Securities,
(8) whether such Series of Securities shall be issuable as one
or more Global Securities and the form of such Series of Securities,
(9) if the Securities of such Series shall be issued in whole
or in part as one or more Global Securities, the Depository for such
Global Security or Securities and any additional terms and conditions
relating to such Global Securities not set forth in this Indenture,
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which such Series of Securities
shall be issuable,
(11) the date from which interest on such Series of Securities
shall accrue,
(12) the basis upon which interest on such Series of
Securities shall be computed (if other than on the basis of a 360-day
year of twelve 30-day months),
(13) if other than the principal amount thereof, the portion
of the principal amount of such Series of Securities which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01,
(14) the Person or Persons who shall be registrar for such
Series of Securities, and the place or places where the Register of
such Series of Securities shall be kept,
(15) any additional events of default with respect to the
Securities of a particular Series not set forth herein,
(16) any additional covenants of the Guarantor or the Company
with respect to the Securities of a particular Series not set forth
herein,
(17) the terms and conditions, if any, upon which any
Securities of such Series may or shall be converted into other
instruments or other forms of property and
(18) any other terms of such Series of Securities (which terms
shall not be inconsistent with the provisions of this Indenture).
8
<PAGE>
All Securities of any one Series shall be substantially identical
except that any Series may have serial maturities and different interest rates
for different maturities and except as to denomination and the differences
herein specified between Global Securities and Securities issued in definitive
form and except as may otherwise be provided in or pursuant to the Certified
Resolution or Supplemental Indenture relating to such Series of Securities. All
Securities of any one Series need not be issued at the same time, and, unless
otherwise provided in or pursuant to the Certified Resolution or Supplemental
Indenture relating to such Series, a Series may be reopened for issuances of
additional Securities of such Series.
(B) At any time and from time to time after the execution and delivery
of this Indenture, the Company and the Guarantor may deliver any Series of
Securities executed by the Company to the Trustee for authentication by it, and
the Trustee shall thereupon authenticate and deliver said Securities (or if only
a single Global Security, such Global Security) to or upon the written order of
the Company, signed by an officer of the Company and an officer of the
Guarantor, without any further corporate action by the Company or the Guarantor.
In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities and except as hereinafter
provided with respect to a Series of Securities subject to a Periodic Offering,
the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(1) each Certified Resolution relating to such Series of Securities,
(2) an executed Supplemental Indenture, if any, relating to
such Series of Securities,
(3) an Opinion of Counsel to the effect that:
(a) the terms and form of such Securities have been
established as permitted by Sections 2.01 and 2.02 in
conformity with the provisions of this Indenture;
(b) such Securities, when executed and issued by the
Company and authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject
to any conditions specified in such Opinion of Counsel, will
constitute valid and binding obligations of the Company,
except as any rights thereunder may be limited by the effect
of bankruptcy, insolvency, reorganization, receivership,
conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally;
the rules governing the availability of specific performance,
injunctive relief or other equitable remedies and general
principles of equity, regardless of whether considered in a
proceeding in equity or at law; the effect of applicable court
decisions invoking statutes or principles of equity, which
have held that certain covenants and provisions of agreements
are unenforceable where the breach of such covenants or
provisions imposes restrictions or burdens upon a borrower,
and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement
of such covenants or provisions under the circumstances would
have violated the creditor's covenants of good faith and fair
dealing implied under California law; and the effect of
California statutes and rules of law which cannot be waived
prospectively by a borrower, and
(c) the Company has complied with all applicable
Federal laws and requirements in respect of the execution and
delivery of such Securities.
With respect to a Series of Securities subject to a Periodic Offering, the
Trustee shall be entitled to receive, and, subject to Section 7.01, shall be
fully protected in relying upon the documents described in the foregoing
9
<PAGE>
subsections (1), (2) and (3) of this Section 2.01(B); provided, that (i) the
Certified Resolution may be delivered to the Trustee prior to the delivery to
the Trustee of such Securities for authentication and delivery, (ii) the Trustee
shall authenticate and deliver Securities of such Series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount, if any, established for such Series, pursuant to such
Certified Resolution or pursuant to such procedures as may be specified from
time to time by a Certified Resolution, (iii) the maturity date or dates,
original issue date or dates, interest rate or rates or the method or methods of
calculating such and any other terms of the Securities of such Series shall be
determined by the Certified Resolution or pursuant to such procedures, (iv) if
provided for in such procedures, such Certified Resolution may authorize
authentication and delivery pursuant to oral or electronic instructions from the
Company or its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing and (v) the Trustee shall be entitled to receive
an Opinion of Counsel only once at or prior to the time of the first
authentication of Securities of such Series and that the opinions described in
the foregoing subsections (a) and (b) of this Section 2.01 may be to the effect
that:
(x) the form of the Securities of such Series has been duly
authorized by the Company and has been established in conformity with
the provisions of this Indenture and that, when the terms of such
Securities shall have been established pursuant to a Certified
Resolution or pursuant to such procedures as may be specified from time
to time by a Certified Resolution, such terms will have been duly
authorized by the Company and will have been established in conformity
with the provisions of this Indenture and
(y) Securities of such Series, when executed and issued by the
Company and completed, authenticated and delivered by the Trustee in
accordance with the provisions of this Indenture and subject to any
conditions specified in such Opinion of Counsel and when paid for, all
as contemplated by and in accordance with the Certified Resolution or
specified procedures, as the case may be, will constitute valid and
binding obligations of the Company, except as any rights thereunder may
be limited by the effect of bankruptcy, insolvency, reorganization,
receivership, conservatorship, arrangement, moratorium or other laws
affecting or relating to the rights of creditors generally; the rules
governing the availability of specific performance, injunctive relief
or other equitable remedies and general principles of equity,
regardless of whether considered in a proceeding in equity or at law;
the effect of applicable court decisions invoking statutes or
principles of equity, which have held that certain covenants and
provisions of agreements are unenforceable where the breach of such
covenants or provisions imposes restrictions or burdens upon a
borrower, and it cannot be demonstrated that the enforcement of such
restrictions or burdens is necessary for the protection of the
creditor, or which have held that the creditor's enforcement of such
covenants or provisions under the circumstances would have violated the
creditor's covenants of good faith and fair dealing implied under
California law; and the effect of California statutes and rules of law
which cannot be waived prospectively by a borrower.
With respect to Securities of a Series offered in a Periodic Offering, the
Trustee may rely, as to the authorization by the Company of any such Securities,
the form and terms thereof and the valid and binding effect thereof, upon the
Opinion of Counsel and other documents delivered pursuant to this Section 2.01
in connection with the first authentication of Securities of such Series unless
and until such Opinion of Counsel or other documents shall have been superseded
or revoked. In connection with the authentication and delivery of Securities of
a Series subject to a Periodic Offering, the Trustee shall be entitled to assume
that the instructions of the Company to authenticate and deliver such Securities
do not violate any rules, regulations or orders of any governmental agency
having jurisdiction over the Company.
Each Security shall be dated the date of its authentication.
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Section 2.02. Form of Securities and Trustee's Certificate of
Authentication. The Securities of each Series shall be substantially of the
tenor and purport as shall be authorized by the related Certified Resolution or
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements thereon as the
Board of Directors of the Company may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Securities of such
Series may be listed, or to conform to usage.
The definitive Securities and each Global Security may be printed,
lithographed or fully or partly engraved or produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
executions thereof.
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the Series designated
herein, referred to in the within-mentioned Indenture.
____________________, as Trustee
By ______________________________
Authorized Officer
Section 2.03. Denominations; Payment of Interest on Securities. The
Securities of each Series shall be issued as fully registered Securities without
coupons (including as one or more Global Securities) and in denominations all as
shall be specified as contemplated by Section 2.01. In the absence of such
provisions with respect to the Securities of any Series, the Securities of such
Series (other than any Global Securities) shall be issued in denominations of
$1,000 and any integral multiple thereof.
If the Securities of any Series shall bear interest, each Security of
such Series shall bear interest from the applicable date at the rate per annum
specified in the Certified Resolution or Supplemental Indenture with respect to
such Series of Securities. Unless otherwise specified in the Certified
Resolution or Supplemental Indenture with respect to the Securities of any
Series, interest on the Securities of such Series shall be computed on the basis
of a 360-day year of twelve 30-day months. Such interest shall be payable on the
Interest Payment Dates, specified in the Certified Resolution or Supplemental
Indenture with respect to such Series of Securities. The Person in whose name
any Security is registered at the close of business on any applicable Record
Date for the Series of which such Security is a part shall be entitled to
receive the interest payable thereon on such Interest Payment Date
notwithstanding the cancellation of such Security upon any transfer or exchange
thereof subsequent to such Record Date and prior to such Interest Payment Date
unless such Security shall have been called for redemption on a Redemption Date
which is subsequent to such Record Date and prior to such Interest Payment Date
or unless the Company shall default in the payment of interest due on such
Interest Payment Date on any Security of such Series.
Any interest on any Security of any Series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Record Date solely by virtue of such Holder
having been such Holder; and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in subsection A or B below:
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A. The Company may elect to make payment of any Defaulted
Interest on the Securities of any Series to the Persons in whose names
such Securities are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date of the proposed payment (which date shall be such
as will enable the Trustee to comply with the next sentence hereof),
and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
subsection provided. Thereupon the Trustee shall fix a special record
date (the "Special Record Date") for the payment of such Defaulted
Interest which shall be not more than 15 nor 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 a Security of such Series at such Holder's address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such Series are registered on such
Special Record Date and shall no longer be payable pursuant to the
following Subsection B.
B. The Company may make payment of any Defaulted Interest on
the Securities of any Series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Subsection, such payment shall
be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.03, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry all the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Security and each such Security
shall bear interest from such date, such that neither gain nor loss in interest
shall result from such transfer, exchange or substitution.
Section 2.04. Execution of Securities. The Securities shall be executed
manually or in facsimile, by an officer and the Secretary or an Assistant
Secretary of the Company under its corporate seal, which may be affixed thereto
or printed, engraved or otherwise reproduced thereon, by facsimile or otherwise.
Only such Securities as shall bear thereon a certificate of authentication
substantially in the form recited herein, executed by the Trustee manually by an
authorized officer, shall be entitled to the benefits of this Indenture or of
the Guarantee or be valid or obligatory for any purpose. Such certificate of
authentication of the Trustee upon any Security executed by the Company shall be
conclusive evidence that the Security so authenticated has been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture. Typographical or other errors or defects in the seal
or facsimile signature on any Security or in the text thereof shall not affect
the validity or enforceability of such Security if it has been duly
authenticated and delivered by the Trustee.
In case any officer of the Company who shall have signed any of the
Securities (manually or in facsimile), shall cease to be such officer before the
Securities so signed shall have been authenticated and delivered by the Trustee,
or disposed of by the Company or the Guarantor, such Securities nevertheless may
be authenticated and delivered or disposed of as though the Person who signed
such Securities had not
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ceased to be such officer of the Company. Also, any Security may be signed on
behalf of the Company by such Persons as on the actual date of execution of
such Security shall be the proper officers of the Company, although at the date
of the execution of this Indenture any such Person was not such officer.
Section 2.05. Registration, Transfer and Exchange of Securities. Except
as specifically otherwise provided herein with respect to Global Securities,
Securities of any Series may be exchanged for a like aggregate principal amount
of Securities of the same Series of other authorized denominations. Securities
to be exchanged shall be surrendered at the offices or agencies to be maintained
in accordance with the provisions of Section 11.02 and the Company shall execute
the Security or Securities, and the Trustee shall authenticate and deliver in
exchange therefor the Security or Securities which the Securityholder making the
exchange shall be entitled to receive.
The Company shall keep or cause to be kept, at one or more of the
offices or agencies to be maintained by the Company in accordance with the
provisions of Section 11.02 with respect to the Securities of each Series, the
Register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of the Securities of such Series
and the transfer of Securities of such Series as in this Article provided. The
Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times
the Register shall be open for inspection by the Trustee and any registrar of
the Securities of such Series other than the Trustee. Upon due presentment for
transfer of any Security of any Series at the offices or agencies of the Company
to be maintained in accordance with Section 11.02 with respect to the Securities
of such Series, the Company shall execute a new Security and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Security or Securities of the same Series for a like aggregate principal amount
of authorized denominations.
Notwithstanding any other provisions of this Section 2.05, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a Series may
not be transferred except as a whole by the Depository for such Series to a
nominee of such Depository or by a nominee of such Depository to such Depository
or another nominee of such Depository or by such Depository or any such nominee
to a successor Depository for such Series or a nominee of such successor
Depository.
All Securities of any Series presented or surrendered for exchange,
transfer, redemption, conversion or payment shall, if so required by the Company
or any registrar of the Securities of such Series, be accompanied by a written
instrument or instruments of transfer, in form satisfactory to the Company and
such registrar, duly executed by the registered Holder or by such Person's
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto.
The Company shall not be required to exchange or transfer (a) any
Securities of any Series during a period beginning at the opening of business 15
days before the day of the first publication or the mailing (if there is no
publication) of a notice of redemption of Securities of such Series and ending
at the close of business on the day of such publication or mailing or (b) any
Securities called or selected for redemption in whole or in part, except, in the
case of Securities called for redemption in part, the portion thereof not so
called for redemption in whole or in part, during a period beginning at the
opening of business on any Record Date for such Series and ending at the close
of business on the relevant Interest Payment Date therefor.
Section 2.06. Temporary Securities. Pending the preparation of
definitive Securities of any Series, the Company may execute and the Trustee
shall authenticate and deliver temporary Securities of such Series which are
printed, lithographed, typewritten or otherwise produced, in any denomination
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate omissions, insertions,
substitutions and other variations as the officers executing such Securities may
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determine, as evidenced by their execution of such Securities. Every such
temporary Security shall be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. If temporary Securities are issued, the Company will
cause definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities of such Series
shall be exchangeable for definitive Securities upon surrender of the temporary
Securities without charge to the Holder at the offices or agencies to be
maintained by the Company as provided in Section 11.02 with respect to the
Securities of such Series. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange for such temporary Securities an equal
aggregate principal amount of definitive Securities of such Series. Until so
exchanged, the temporary Securities of any Series shall in all respects be
entitled to the benefits of this Indenture and interest thereon, when and as
payable, shall be paid to the owners of the temporary Securities upon
presentation thereof for notation of such payment thereon.
Section 2.07. Mutilated, Destroyed, Lost or Stolen Securities. If (i)
any mutilated Security is surrendered to the Trustee, or the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Security, and (ii) there is delivered to the Company, the Guarantor and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its request the Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal
amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.07, 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 connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
destroyed, lost or stolen Security, shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the security and benefits of this Indenture equally and ratably
with all other Outstanding Securities of such Series.
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.08. Cancellation and Destruction of Surrendered Securities.
All Securities surrendered for payment, redemption, transfer, conversion or
exchange shall, if surrendered to the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or of the Trustee, be delivered to the
Trustee, and the same, together with Securities surrendered to the Trustee for
cancellation, shall be canceled by it, and thereafter disposed by it as directed
by the Company and no Securities shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee
shall destroy canceled Securities and deliver a certificate of destruction
thereof to the Company and the Guarantor unless by an Officer's Certificate of
the Company, the Company shall direct that canceled Securities be returned to
it. If the Company shall purchase or otherwise acquire any of the Securities,
however, such purchase or acquisition shall not operate as a payment, redemption
or satisfaction of the indebtedness represented by such Securities unless and
until the Company, or the Guarantor, at their respective options, shall deliver
or surrender the same to the Trustee for cancellation.
Section 2.09. Securities in Global Form; Depositories. (a) Each Global
Security shall: (i) represent and be denominated in an aggregate amount equal to
the aggregate principal amount of the Securities of the Series to be represented
by such Global Security, (ii) be registered in the name of either the
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Depository for such Global Security or the nominee of such Depository, (iii) be
delivered by the Trustee to such Depository or pursuant to such Depository's
written instruction and (iv) bear a legend substantially to the following
effect: "Unless and until it is exchanged in whole or in part for Securities in
definitive form, this Global Security may not be transferred except as a whole
by the Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository or by the
Depository or any nominee to a successor Depository or a nominee of any
successor Depository." The notation of the record owner's interest in such
Global Security upon the original issuance thereof shall be deemed to be
delivered in connection with the original issuance of each beneficial owner's
interest in such Global Security. Without limiting the foregoing, the Company,
the Guarantor and the Trustee shall have no responsibility, obligation or
liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Series of Securities represented by
the Global Security to any Person having any ownership interest in such Global
Security or to any of the Depository's participating organizations or (z) any
payment made on account of any beneficial ownership interest in such Global
Security.
(b) If any Security of a Series is issuable in the form of a Global
Security or Securities, each such Global Security may provide that it shall
represent the aggregate amount of Outstanding Securities of such Series from
time to time endorsed thereon and may also provide that the aggregate amount of
Outstanding Securities of such Series represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Global Security to reflect
the amount of Outstanding Securities of a Series represented thereby shall be
made by the Trustee and in such manner as shall be specified on such Global
Security. Any instructions by the Company with respect to a Global Security,
after its initial issuance, shall be in writing but need not comply with Section
14.03 of this Indenture.
(c) Each Depository designated pursuant to the provisions of Section
2.01 of this Indenture for a Global Security must, at the time of its
designation and at all times while it serves as a depository, be a clearing
agency registered under the Securities Exchange Act of 1934, as amended, and any
other applicable statute or regulation. If at any time the Depository for the
Securities of a Series notifies the Company that it is unwilling or unable to
continue as Depository for the Securities of such Series or if at any time the
Depository for the Securities of such Series shall no longer be eligible under
this Section 2.09, the Company shall appoint a successor Depository with respect
to the Securities of such Series. If a successor Depository for the Securities
of such Series is not appointed by the Company within 90 days after the Company
receives such notice or learns of such ineligibility, the Company shall execute
and the Company shall direct the Trustee to authenticate and deliver definitive
Securities of such Series in authorized denominations in exchange for the Global
Security or Securities. Upon receipt of such direction, the Trustee shall
thereupon authenticate and deliver the definitive Securities of such Series in
the same aggregate principal amount as the Global Security or Securities
representing such Series in exchange for such Global Security or Securities, in
accordance with the provisions of subsection (e) of this Section 2.09, without
any further corporate action by the Company or the Guarantor.
(d) The Company may at any time and in its sole discretion determine
that the Securities of any Series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or Securities.
In such event, the Company will execute and upon receipt of a written order from
the Company, the Trustee shall thereupon authenticate and deliver Securities of
such Series in definitive form and in authorized denominations in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Series in exchange for such Global Security or
Securities, in accordance with the provisions of subsection (e) of this Section
2.09 without any further corporate action by the Company or the Guarantor.
(e) Upon any exchange hereunder of the Global Security or Securities
for Securities in definitive form, such Global Security or Securities shall be
canceled by the Trustee. Securities issued hereunder in exchange for the Global
Security or Securities shall be registered in such names and in such authorized
denominations as the Depository for such Global Security, pursuant to
instructions from its direct or indirect
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participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such definitive Securities in exchange for the Global Security or
Securities to the Persons in whose name such definitive Securities have been
registered in accordance with the directions of the Depository.
ARTICLE THREE
REDEMPTION OF SECURITIES
Section 3.01. Redemption of Securities. Securities of any Series may be
made subject to redemption prior to their Stated Maturity, as a whole or in
part, at such time or times, upon payment of the principal amount thereof plus
such premium or premiums, if any, as shall be set forth in the Certified
Resolution or the Supplemental Indenture relating to such Series.
Section 3.02. Notice of Redemption. In all cases other than redemption
at the option of the Holders of Securities, notice of redemption shall be
mailed, not less than 30 nor more than 60 days prior to the Redemption Date, to
each Person in whose name any Security called for redemption is registered on
the Register as of the date of such notice, but neither a failure to give notice
by mail nor any defect in any notice so mailed shall affect the validity of the
proceedings for such redemption. Each notice of redemption shall state the
Redemption Date, the Redemption Price, the place of redemption, the principal
amount and, if less than all, the distinctive numbers of the Securities to be
redeemed and shall also state that the interest on the Securities in such notice
designated for redemption shall cease to accrue from and after such Redemption
Date.
Notice of redemption of Securities may be given by the Company, or at
the option of the Company, by the Trustee on behalf of the Company. Upon receipt
of any direction to give notice, the Trustee shall immediately give such notice.
The Trustee may rely upon such direction that all conditions precedent to the
giving of such direction have been complied with or done.
Section 3.03. Selection of Securities for Redemption. Whenever
provision is made for the redemption of any Series of Securities or portion
thereof and less than all of the Securities of such Series or portion thereof
are called for redemption, the Trustee shall select the Securities to be
redeemed, from the Outstanding Securities of such Series or portion thereof not
previously called for redemption, in any manner which the Trustee deems fair and
appropriate. For the purpose of any such selection, the Trustee shall assign a
separate number for each $1,000 principal amount of each Security of a
denomination of more than $1,000, except that if the Securities of any Series
are denominated in a currency other than United States Dollars, the Trustee
shall assign a separate number for each amount equal to the minimum denomination
of each Security of such Series of a denomination greater than such minimum
denomination.
Section 3.04. Partial Redemption of Registered Security. Upon surrender
of any registered Security (including any Global Security) to be redeemed in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the registered owner thereof, without service charge, a new Security
or Securities (or in the case of a Global Security, a new Global Security) of
the same Series and maturity and of authorized denomination or denominations as
requested by such registered owners, in aggregate principal amount equal to and
in exchange for the unredeemed portion of the principal of the Security so
surrendered.
Section 3.05. Effect of Redemption. If notice of redemption shall have
been duly given as provided in Section 3.02, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place or places stated in such notice at the
Redemption Price specified in such notice, and on and after such Redemption Date
(unless the Company and the Guarantor shall default in the payment of such
Securities at the applicable Redemption Price) such Securities or portions of
Securities shall cease to bear interest, and such Securities shall cease from
and after the Redemption Date to be entitled to any benefit or security under
this Indenture, and the Holders thereof shall have no right in respect of such
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Securities except the right to receive the Redemption Price thereof and any
unpaid interest accrued to the Redemption Date. Upon presentation and surrender
of such Securities at said place of payment in said notice specified, the said
Securities or portions thereof shall be paid and redeemed by the Company or the
Guarantor at the applicable Redemption Price, together with any interest accrued
to the Redemption Date; provided, however, that any regular payment of interest
becoming due on any Securities on the Redemption Date shall be payable to the
registered owners of such Securities as of the relevant Record Date as provided
in Article Two hereof. Upon presentation of any Security which is redeemed in
part only, the Company shall execute a new Security and the Trustee shall
authenticate and deliver at the expense of the Company a new Security of the
same Series of authorized denomination in principal amount equal to the
unredeemed portion of the Security so presented.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, to the extent permitted
by law, bear interest from the date fixed for redemption at the rate borne by
the Security, or, in the case of a Security which does not bear interest, at the
rate of interest set forth therefor in the Security, in either case, until paid.
ARTICLE FOUR
THE GUARANTEE BY AND
COVENANTS OF THE GUARANTOR
Section 4.01. Guarantee. The Guarantor hereby unconditionally
guarantees to the Holders from time to time of the Securities (a) the full and
prompt payment of the principal of and any premium on any Security when and as
the same shall become due, whether at the stated maturity thereof, by
acceleration, redemption or otherwise and (b) the full and prompt payment of any
interest on any Security when and as the same shall become due. Each payment by
the Guarantor with respect to any Security shall be paid in the currency
specified in this Indenture or in the related Certified Resolution or
Supplemental Indenture for payments on such Security. Each and every default in
the payment of the principal of or interest or any premium on any Security shall
give rise to a separate cause of action hereunder, and separate suits may be
brought hereunder as each cause of action arises.
The obligations of the Guarantor hereunder shall be absolute and
unconditional and shall remain in full force and effect until the entire
principal of and interest and any premium on the Securities shall have been paid
or provided for in accordance with the provisions of this Indenture, and such
payment shall not be affected, modified or impaired upon the happening from time
to time of any event, including without limitation any of the following, whether
or not with notice to, or the consent of, the Guarantor:
(a) the waiver, surrender, compromise, settlement, release or
termination of any or all of the obligations, covenants or agreements
of the Company under this Indenture or the Securities;
(b) the failure to give notice to the Guarantor of the occurrence of
an Event of Default;
(c) the waiver, compromise or release of the payment,
performance or observance by the Company or the Guarantor of any or all
of the obligations, covenants or agreements of either of them contained
in this Indenture;
(d) the extension of the time for payment of any principal of
or interest or any premium on any Security or for any other payment
under this Indenture or of the time for performance of any other
obligations, covenants or agreements under or arising out of this
Indenture;
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(e) the modification or amendment (whether material or
otherwise) of any obligation, covenant or agreement set forth in this
Indenture or the Securities;
(f) the taking or the omission of any of the actions referred
to in this Indenture and any of the actions under the Securities;
(g) any failure, omission, delay or lack on the part of the
Trustee to enforce, assert or exercise any right, power or remedy
conferred on the Trustee in this Indenture, or any other act or acts on
the part of the Trustee or any of the Holders from time to time of the
Securities;
(h) the voluntary or involuntary liquidation, dissolution,
sale or other disposition of all or substantially all the assets,
marshalling of assets and liabilities, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization,
arrangement, composition with creditors or readjustment of, or other
similar proceedings affecting the Guarantor, or the Company or any of
the assets of any of them, or any allegation or contest of the validity
of the Guarantee in any such proceeding;
(i) to the extent permitted by law, the release or discharge
by operation of law of the Guarantor from the performance or observance
of any obligation, covenant or agreement contained in this Indenture;
(j) to the extent permitted by law, the release or discharge
by operation of law of the Company from the performance or observance
of any obligation, covenant or agreement contained in this Indenture;
(k) the default or failure of the Guarantor or the Trustee
fully to perform any of its obligations set forth in this Indenture or
the Securities; or
(l) the invalidity of this Indenture or the Securities or any
part of any thereof.
No set-off, counterclaim, reduction, or diminution of any obligation,
or any defense of any kind or nature which the Guarantor has or may have against
the Trustee shall be available hereunder to the Guarantor against the Trustee to
reduce the payments of the Guarantor under this Section 4.01.
The Guarantor assumes responsibility for being and remaining informed
of the financial condition of the Company and of all other circumstances bearing
upon the risk of nonpayment of amounts owing under the Securities which diligent
inquiry would reveal and agrees that the Holders of the Securities shall have no
duty to advise the Guarantor of information known to any of them regarding such
condition or any such circumstances.
Section 4.02. Proceedings Against the Guarantor. In the event of a
default in the payment of principal of or any premium on any Security when and
as the same shall become due, whether at the stated maturity thereof, by
acceleration, call for redemption or otherwise, or in the event of a default in
any sinking fund payment, or in the event of a default in the payment of any
interest on any Security when and as the same shall become due, the Trustee
shall have the right to proceed first and directly against the Guarantor under
this Indenture without first proceeding against the Company or exhausting any
other remedies which it may have and without resorting to any other security
held by the Trustee.
The Trustee shall have the right, power and authority to do all things
it deems necessary or advisable to enforce the provisions of this Indenture
relating to the Guarantee and protect the interests of the Holders of the
Securities and, in the event of a default in payment of the principal of or any
premium on any Security when and as the same shall become due, whether at the
stated maturity thereof, by acceleration, call for redemption or otherwise, or
in the event of a default in the payment of any interest on any Security when
and
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as the same shall become due, the Trustee may institute or appear in such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any of its rights and the rights of the Securityholders,
whether for the specific enforcement of any covenant or agreement in this
Indenture relating to the Guarantee or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy. Without limiting the
generality of the foregoing, in the event of a default in payment of the
principal of or interest or any premium on any Security when due, the Trustee
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 Guarantor and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Guarantor, wherever situated.
Section 4.03. Guarantee for Benefit of Securityholders. The Guarantee
contained in this Indenture is entered into by the Guarantor for the benefit of
the Holders from time to time of the Securities. Such provisions shall not be
deemed to create any right in, or to be in whole or in part for the benefit of
any Person other than the Trustee, the Guarantor, the Holders from time to time
of the Securities and their permitted successors and assigns.
Section 4.04. Corporate Existence of Guarantor; Consolidation, Merger,
Sale or Transfer. The Guarantor covenants that so long as any of the Securities
are Outstanding, it will maintain its corporate existence, will not dissolve,
sell or otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another corporation or permit one or more other
corporations to consolidate with or merge into it; provided that the Guarantor
may, without violating the covenants in this Section 4.04 contained, consolidate
with or merge into another corporation or permit one or more other corporations
to consolidate with or merge into it, or sell or otherwise transfer to another
corporation all or substantially all of its assets as an entirety and thereafter
dissolve, if the surviving, resulting or transferee corporation, as the case may
be, (i) shall be incorporated and existing under the laws of one of the States
of the United States of America, (ii) assumes, if such corporation is not the
Guarantor, all of the obligations of the Guarantor hereunder and (iii) is not,
after such transaction, otherwise in default under any provisions hereof.
Section 4.05. Securities to Be Secured in Certain Events. If, upon any
consolidation or merger of the Guarantor, any Principal Property would thereupon
become subject to any mortgage, security interest, pledge, lien or other
encumbrance (the "Attaching Lien"), the Guarantor, prior to any such
consolidation or merger, will secure the Outstanding Securities (together with,
if the Guarantor shall so determine, any other indebtedness of or guaranteed by
the Guarantor ranking equally with the Securities and then existing or
thereafter created) equally and ratably with the debt or other obligation
secured by the Attaching Lien unless such debt or other obligation secured by
the Attaching Lien could have been incurred by the Guarantor or a Restricted
Subsidiary without being required by the provisions of Section 4.06 (whether or
not such Section may be applicable to any Series of Securities) to secure the
Securities equally and ratably therewith.
Section 4.06. Limitations on Liens. Nothing in this Indenture or
(except as expressly provided with respect to a Series in the establishment of
the terms thereof) in the Securities contained shall in any way restrict or
prevent the Guarantor or any Subsidiary from incurring any indebtedness;
provided that the Guarantor covenants and agrees that it will not itself and
will not permit any Restricted Subsidiary to issue, assume or guarantee any
notes, bonds, debentures or other similar evidences of indebtedness for money
borrowed (notes, bonds, debentures or other similar evidences of indebtedness
for money borrowed being hereinafter in this Article Four called "Debt") secured
by a pledge of, or mortgage or lien on (mortgages, pledges and liens being
hereinafter in this Article Four called "liens"), any of the Guarantor's or any
Restricted Subsidiary's Principal Properties or any shares of stock of or
indebtedness of any Restricted Subsidiary (such Principal Properties, stock and
indebtedness being hereinafter collectively referred to as "Property"), without
effectively providing that the Securities (together with, if the Guarantor shall
so determine, any other Debt of the Guarantor or such Restricted Subsidiary then
existing or thereafter created ranking equally with the Securities, including
guarantees of indebtedness of others) shall be secured equally and ratably with
(or prior to) such Debt, so long as such Debt shall be so secured, except that
this Section 4.06 shall not apply to Debt secured by:
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(1) liens on Property of any corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(2) liens on Property existing at the time of acquisition
thereof or to secure the payment of all or any part of the purchase
price thereof or to secure any Debt incurred prior to, at the time of
or within 24 months after the acquisition of such Property for the
purpose of financing all or any part of the purchase price thereof;
(3) liens on particular Property to secure any Debt incurred
to provide funds for all or any part of the cost of exploration,
drilling or development of such Property or the cost of improvements to
such Property;
(4) liens which secure Debt owing by a Restricted Subsidiary
to the Guarantor or any Subsidiary;
(5) liens on personal property, other than shares of stock or
indebtedness of any Restricted Subsidiary, to secure loans maturing not
more than one year from the date of the creation thereof;
(6) liens on Property to secure Debt or other indebtedness
incurred in connection with any financings done in accordance with the
provisions of Section 103 of the Internal Revenue Code of 1986, as
amended; and
(7) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien
referred to in the foregoing subparagraphs (1) to (6), inclusive, or of
any Debt secured thereby; provided that such extension, renewal or
replacement mortgage shall be limited to all or any part of the same
Property that secured the lien extended, renewed or replaced (plus
improvements on such Property).
Notwithstanding the restrictions contained in this Section 4.06, the
Guarantor may, and may permit any Restricted Subsidiary to, issue, assume or
guarantee Debt secured by liens on property of the types to which this Section
applies and which are not excepted by Subsections (1) through (7) of this
Section without equally and ratably securing the Securities, provided that the
sum of all such Debt then being issued, assumed or guaranteed and the aggregate
of Attributable Debt with respect to sale and leaseback arrangements of the
Guarantor and any Restricted Subsidiary permitted by Section 4.07 (whether or
not such Section may be applicable to any Series of Securities) does not exceed
ten percent of the Consolidated Adjusted Tangible Assets prior to the time such
Debt was issued, assumed or guaranteed.
The following types of transactions, among others, shall not be deemed
to create "Debt" secured by "liens" within the meaning of those terms as defined
above:
(a) the sale or other transfer of (i) oil, gas or other
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii)
any other interest in property of the character commonly referred to as
a "production payment"; and
(b) the mortgage or pledge of any property of the Guarantor or
any Subsidiary in favor of the United States, or any State, or any
department, agency or instrumentality of either, to secure partial,
progress, advance or other payments to the Guarantor or any Subsidiary
pursuant to the provisions of any contract or statute.
Section 4.07. Limitation on Sale and Leaseback. The Guarantor will not
itself, and will not permit any Restricted Subsidiary to, enter into any
arrangement (except for temporary leases for a term of not more
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than three years, or except for sale or transfer and leaseback transactions
involving the acquisition or improvement of Principal Properties provided that
the amount of consideration received at the time of sale or transfer by the
Guarantor or such Restricted Subsidiary for the property so sold or transferred
shall be applied as set forth in subparagraph (2) below) with any bank,
insurance company or other lender or investor, or to which any such lender or
investor is a party, providing for the leasing to the Guarantor or any
Restricted Subsidiary of any Principal Property which has been or is to be sold
or transferred by the Guarantor or any Restricted Subsidiary to such lender or
investor or to any Person to whom funds have been or are to be advanced by such
lender or investor on the security of such property unless, either:
(1) the Guarantor or any Restricted Subsidiary could create
Debt secured by a mortgage pursuant to Section 4.06 on the property to
be leased without equally and ratably securing the Securities or
(2) The Guarantor within the 12 months preceding such sale or
transfer or the 12 months following such sale or transfer, regardless
of whether such sale or transfer may have been made by the Guarantor or
by a Restricted Subsidiary, has applied or applies an amount equal to
the greater of (a) the net proceeds of the sale of the property leased
pursuant to such arrangement or (b) the fair value of the property so
leased at the time of entering into such arrangement:
(i) to the voluntary retirement of debt of the
Guarantor or of a Restricted Subsidiary or debt of a
Subsidiary guaranteed by the Guarantor which debt matures by
its terms more than one year after the date on which it was
originally incurred (collectively herein called "funded
debt"); provided that there shall be credited against the
amount required by subparagraph (2) to be applied to the
retirement of funded debt an amount equal to:
(A) the principal amount of any Securities
delivered within the 12 months preceding such sale or
transfer or the 12 months following such sale or
transfer to the Trustee for voluntary retirement and
cancellation, and
(B) the principal amount of funded debt,
other than Securities, voluntarily retired by the
Guarantor within 12 months before or after such sale;
or
(ii) to the acquisition, development or improvement
of a Principal Property or Principal Properties.
Section 4.08. Notice of Default. The Guarantor covenants that, as soon
as is practicable, the Guarantor will furnish the Trustee notice of any event
which is an Event of Default or which with the giving of notice or the passage
of time or both would constitute an Event of Default which has occurred and is
continuing on the date of such notice, which notice shall set forth the nature
of such event and the action which the Guarantor proposes to take with respect
thereto.
Section 4.09. Waiver of Certain Covenants of Guarantor. The Guarantor
may omit in any particular instance to comply with any covenant, term, provision
or condition set forth in this Article Four with respect to the Securities of
any series if before the time for such compliance, the Holders of at least a
majority in principal amount of the Securities of such Series at the time
Outstanding shall either waive such compliance in such instance or generally
waive compliance with such covenant, term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Guarantor in respect of any such covenant, term, provision or
condition shall remain in full force and effect.
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ARTICLE FIVE
SECURITYHOLDERS' LISTS
Section 5.01. Company to Furnish Trustee Information As to the Names
and Addresses of Securityholders. The Company will furnish or cause to be
furnished to the Trustee, not less than 45 days nor more than 60 days after each
date (month and day) specified as an Interest Payment Date for the Securities of
the first Series issued under this Indenture (whether or not any Securities of
that Series are then Outstanding), but in no event less frequently than
semiannually, and at such other times as the Trustee may request in writing,
within 30 days after receipt by the Company of any such request, a list, in such
form as the Trustee may reasonably require, containing all the information in
the possession or control of the Company, or any of its Paying Agents other than
the Trustee, as to the names and addresses of the Holders of Securities,
obtained since the date as of which the next previous list, if any, was
furnished, excluding from any such list the names and addresses received by the
Trustee in its capacity as registrar (if so acting). Any such list may be dated
as of a date not more than 15 days prior to the time such information is
furnished and need not include information received after such date.
Section 5.02. Preservation of Information; Communication to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Holders of Securities of
each Series (1) contained in the most recent list furnished to it as provided in
Section 5.01, (2) received by the Trustee in the capacity of Paying Agent or
registrar (if so acting) and (3) filed with the Trustee within the two preceding
years as provided for in Section 5.04(c). The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of any Series or with Holders of all Securities with respect to their
rights under this Indenture or under such Securities, and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five Business Days after the receipt
of such application, at its election, either:
(1) afford such applicants access to the information preserved
at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 5.02 or
(2) inform such applicants as to the approximate number of
Holders of Securities of such Series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection
(a) of this Section 5.02, and as to the approximate cost of mailing to
such Securityholders the form of proxy or other communications, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each of the Holders of Securities of such Series, or all Securities, as
the case may be, whose name and address appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a) of
this Section 5.02, a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such Series or
all Securities, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of
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such objections or if, after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of the Securities, by receiving and holding
the same, agrees with the Company, the Guarantor and the Trustee that neither
the Company nor the Guarantor nor the Trustee nor any Paying Agent nor any
registrar shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with the provisions of subsection (b) of this Section 5.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
Section 5.03. Reports by Company and Guarantor. (a) The Company and the
Guarantor each covenant and agree to file with the Trustee within 30 days after
the Company or the Guarantor is required to file the same with the Commission,
copies of the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company or the
Guarantor may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the Company or the
Guarantor is not required to file information, documents or reports pursuant to
either of such sections, then to file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Securities Exchange
Act of 1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company and the Guarantor each covenant and agree to file with
the Trustee and the Commission, in accordance with the rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company or the
Guarantor, as the case may be, with the conditions and covenants provided for in
this Indenture as may be required from time to time by such rules and
regulations.
(c) The Company and the Guarantor each covenant and agree to transmit
to the Holders of Securities within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04,
such summaries of any information, documents and reports required to be filed by
the Company or the Guarantor, as the case may be, pursuant to subsections (a)
and (b) of this Section 5.03 as may be required by rules and regulations
prescribed from time to time by the Commission.
(d) The Company, the Guarantor and any other obligor on the Securities
each covenant and agree to furnish to the Trustee, not less than annually, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's or the Guarantor's compliance with all conditions and covenants of
this Indenture (which compliance shall be determined without regard to any
period of grace or requirement of notice as provided in this Indenture). Such
certificates need not comply with Section 14.03 of this Indenture.
Section 5.04. Reports by Trustee. (a) On or before the first July 15th
following the date of execution of this Indenture, and on or before July 15 in
every year thereafter, if and so long as any Securities are Outstanding
hereunder, the Trustee shall transmit to the Securityholders as hereinafter in
this Section 5.04 provided, a brief report dated as of the preceding May 15 with
respect to any of the following events which may have occurred within the
previous 12 months (but if no such event has occurred within such period no
report need be transmitted):
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(1) any change to its eligibility under Section 7.09, and its
qualifications under Section 7.08;
(2) the creation of or any material change to a relationship
specified in paragraph (1) through (10) of Section 7.08(d)
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of the Securities of any Series,
on any property or funds held or collected by it as Trustee, except
that the Trustee shall not be required (but may elect) to state such
advances if such advances so remaining unpaid aggregate not more than
one-half of one percent of the principal amount of the Securities of
such Series Outstanding on the date of such report;
(4) the amount, interest rate and maturity date of all other
indebtedness owing by the Company or the Guarantor (or by any other
obligor on the Securities) to the Trustee in its individual capacity,
on the date of such report, with a brief description of any property
held as collateral security therefor, except indebtedness based upon a
creditor relationship arising in any manner described in paragraph (2),
(3), (4) or (6) of subsection (b) of Section 7.13;
(5) any change to the property and funds, if any, physically
in the possession of the Trustee (as such) on the date of such report;
(6) any additional issue of Securities which the Trustee has not
previously reported; and
(7) any action taken by the Trustee in the performance of its
duties under this Indenture which it has not previously reported and
which in its opinion materially affects the Securities, except action
in respect of a default, notice of which has been or is to be withheld
by it in accordance with the provisions of Section 6.10.
(b) The Trustee shall transmit to the Securityholders, as hereinafter
provided, a brief report with respect to the character and amount of any
advances (and if the Trustee elects so to state, the circumstances surrounding
the making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to the provisions of subsection (a) of this Section
(or if no such report has yet been so transmitted, since the date of execution
of this Indenture), for the reimbursement of which it claims or may claim a lien
or charge prior to that of the Securities of any Series on property or funds
held or collected by it as Trustee, and which it has not previously reported
pursuant to this subsection, except that the Trustee shall not be required (but
may elect) to report such advances if such advances remaining unpaid at any time
aggregate ten percent or less of the principal amount of Securities of such
Series Outstanding at such time, such report to be transmitted within 90 days
after such time.
(c) Reports pursuant to this Section 5.04 shall be transmitted by mail
to (i) all Holders of Securities of any Series, as the names and addresses of
such Holders shall appear upon the Register of the Securities of such Series,
(ii) to such Holders of Securities as have, within the two years preceding such
transmission, filed their names and addresses with the Trustee for that purpose
and (iii) except in the case of reports pursuant to subsection (b) of this
Section 5.04 to each Holder whose name and address are preserved at the time by
the Trustee as provided in Section 5.02(a) hereof.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange upon which
the Securities of any Series are listed and also with the
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Commission. The Company will notify the Trustee when and as the Securities of
any Series become listed on any stock exchange.
ARTICLE SIX
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration, Waiver of Default and
Restoration of Position and Rights. The term "Event of Default" whenever used
herein with respect to any particular Series of Securities shall mean any one of
the following events:
(a) default in the payment of any installment of interest on
any Security of such Series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days, or
(b) default in the payment of all or any part of the principal
of or any premium on any Security of such Series as and when the same
shall become due and payable whether at maturity, by proceedings for
redemption, by declaration or otherwise, or
(c) default in the satisfaction of any sinking fund payment
obligation relating to such Series of Securities, when and as such
obligation shall become due and payable, or
(d) failure on the part of the Company or the Guarantor duly
to observe or perform in any material respect any other of the
covenants or agreements on the part of the Company or the Guarantor in
the Securities or in this Indenture (including any Supplemental
Indenture or pursuant to any Certified Resolution, as contemplated by
Section 2.01) specifically contained for the benefit of the Holders of
the Securities of such Series, for a period of 90 days after there has
been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee, or to the Company, the Guarantor and the
Trustee by the Holders of not less than 25% in principal amount of the
Securities of such Series and all other Series so benefitted (all
Series voting as one class) at the time Outstanding under this
Indenture a written notice specifying such failure and stating that
such is a "Notice of Default" hereunder, or
(e) the entry or order of a court of competent jurisdiction
against the Company adjudging the Company bankrupt or insolvent, or
approving a petition seeking reorganization or winding-up of the
Company under the Bankruptcy Act (Canada), the Companies' Creditors
Arrangement Act (Canada) or any other bankruptcy, insolvency or
analogous law, or appointing a receiver, or other Person with like
powers, of the Company or of all, or any substantial part of, the
property of the Company or ordering the involuntary winding-up or
liquidation of the affairs of the Company, and any such decree or order
continues unstayed and in effect for a period of more than 60
consecutive days, or if any receiver or other Person with like powers
is appointed for the Company or all, or any substantial part of, the
property of the company and such appointment continues undischarged and
in effect for a period of more than 60 consecutive days, or
(f) the institution by the Company of proceedings to be
adjudicated bankrupt or insolvent, or the Company's consent to the
institution of bankruptcy or insolvency proceedings against it, under
the Bankruptcy Act (Canada), the Companies' Creditors Arrangement Act
(Canada) or any other bankruptcy, insolvency or analogous law, or its
consent to the filing of any petition under any such law or to the
appointment of a receiver or other Person with like powers of the
Company or of all, or any substantial part of, the property
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of the Company, or the Company makes a general assignment for the benefit
of creditors, or admits in writing its inability to pay its debts
generally as they become due or takes any corporate action in
furtherance of any of the foregoing, or
(g) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Guarantor in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of the Guarantor or for any substantial part of its property,
or ordering the winding up or liquidation of its affairs, if such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days, or
(h) the commencement by the Guarantor of a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or the Guarantor's consent to the entry of an
order for relief in any involuntary case under any such law, or its
consent to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or similar
official) of the Guarantor or for any substantial part of its property,
or the making by the Guarantor of any general assignment for the
benefit of creditors, or its failure generally to pay its debts as they
become due or the taking by the Guarantor of any corporate action in
furtherance of any of the foregoing.
If an Event of Default shall have occurred and be continuing with
respect to any one or more Series of Outstanding Securities, then and in each
and every such case, unless the principal amount of all the Securities of each
Series as to which there is an Event of Default shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in principal
amount of the Securities of such Series then Outstanding hereunder (each such
Series voting as a separate class) by notice in writing to the Company and to
the Guarantor (and to the Trustee if given by Securityholders) may declare the
principal amount (or, if the Securities of any such Series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such Series) of all the Securities of such Series, together with
any accrued interest, to be due and payable immediately and upon any such
declaration the same shall be immediately due and payable, anything in this
Indenture or in the Securities of such Series contained to the contrary
notwithstanding. The foregoing provisions, however, are subject to the condition
that if, at any time after the principal amount of the Securities of any one or
more Series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
moneys due shall have been obtained or entered as hereinafter provided, the
Company or the Guarantor shall pay or shall deposit with the Trustee a sum
sufficient to pay any matured installments of interest upon all the Securities
of such Series (or upon all the Securities, as the case may be) and the
principal of any and all Securities of such Series (or of any and all the
Securities, as the case may be) which shall have become due otherwise than by
declaration (with interest on overdue installments of interest to the extent
permitted by law and on such principal at the rate or rates of interest borne by
or prescribed therefor in the Securities of such Series to the date of such
payment or deposit) and the amounts payable to the Trustee under Section 7.06
and any and all defaults under the Indenture with respect to Securities of such
Series (or all Securities, as the case may be), other than the non-payment of
principal of and any accrued interest on Securities of such Series (or any
Securities, as the case may be) which shall have become due by declaration shall
have been cured, remedied or waived as provided in Section 6.09 -- then and in
every such case the Holders of a majority in principal amount of the Securities
of such Series (or of all the Securities, as the case may be) then Outstanding
(such Series or all Series voting as one class if more than one Series are so
entitled) by written notice to the Company, to the Guarantor and to the Trustee,
may rescind and annul such declaration and its consequences; but no such
rescission and annulment shall extend to or shall affect any subsequent default,
or shall impair any right consequent thereon.
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In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such rescission or annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the Guarantor, the Trustee and the Holders of the Securities of such
Series (or of all the Securities, as the case may be) shall be restored
respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Company, the Guarantor and the Trustee and the
Holders of the Securities of such Series (or of all the Securities, as the case
may be) shall continue as though no such proceedings had been taken.
Section 6.02. Covenant of Company to Pay to Trustee Whole Amount Due on
Securities on Default in Payment of Interest or Principal. The Company covenants
that:
(1) in case default shall be made in the payment of any
installment of interest on any of the Securities of any Series as and
when the same shall become due and payable, and such default shall have
continued for a period of 30 days or
(2) in case default shall be made in the payment of all or any
part of the principal of any of the Securities of any Series when the
same shall have become due and payable, whether at the Stated Maturity
of the Securities of such Series or by any call for redemption or upon
declaration of acceleration or otherwise or
(3) default shall be made in the satisfaction of any sinking
fund obligation when and as such obligation becomes due and payable,
upon demand of the Trustee, the Company will pay to the Trustee, for the benefit
of the Holders of the Securities of such Series, the whole amount that then
shall have become due and payable on all such Securities of such Series for
principal (and any premium) and interest and for any overdue sinking fund
payment together with interest upon the overdue principal and installments of
interest (to the extent permitted by law) at the rate or rates of interest borne
by, or prescribed therefor in, the Securities of such Series; and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expense of collection, including a reasonable compensation to the Trustee, its
agents and counsel, and any expenses or liabilities incurred, and all advances
made, by the Trustee hereunder other than through its negligence or bad faith.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as Trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Company, the Guarantor or any other obligor
upon such Securities, and collect in the manner provided by law out of the
property of the Company, the Guarantor or any other obligor upon such Securities
wherever situated the moneys adjudged or decreed to be payable.
If an Event of Default with respect to Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 6.03. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other similar judicial proceeding
relative to the Company or any other obligor upon the Securities or the property
of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any Series 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 interest) shall be entitled and
empowered, to the fullest extent permitted by law, by intervention in such
proceeding or otherwise:
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(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.04. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee to the fullest extent
permitted by law without the possession of any of the Securities or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 6.05. Application of Moneys Collected By Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Securities in respect of which
moneys have been collected, and stamping thereon the payment, if only partially
paid, and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due to the Trustee under
Section 7.06;
SECOND: In case the principal of the Outstanding Securities in
respect of which moneys have been collected shall not have become due
and be unpaid, to the payment of any interest on such Securities, in
the order of the maturity of the installments of such interest, with
interest upon the overdue installments of interest (so far as permitted
by law and to the extent that such interest has been collected by the
Trustee at the rate or rates of interest borne by such Securities or
prescribed therefor therein), such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Securities in
respect of which such moneys have been collected shall have become due,
by declaration or otherwise, to the payment of the whole amount then
owing and unpaid upon such Securities for principal and interest, if
any, with interest on the overdue principal and any installments of
interest (so far as permitted by law and to the extent that such
interest has been collected by the Trustee) at the rate or rates of
interest borne by, or prescribed therefor in, such Securities; and in
case
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such moneys shall be insufficient to pay in full the whole amount
so due and unpaid upon such Securities, then to the payment of such
principal and interest, without preference or priority of principal
over interest, or of interest over principal, or of any installment of
interest over any other installment of interest, or of any Security
over any other Security, ratably to the aggregate of such principal and
accrued and unpaid interest; and
FOURTH: To the payment of the remainder, with appropriate
interest to the Company, the Guarantor or their successors or assigns,
or to whomsoever may be lawfully entitled to receive the same, or as a
court of competent jurisdiction may direct.
Section 6.06. Limitation on Suits By Holders of Securities. No Holder
of any Security of any Series shall have any right by virtue or by availing of
any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
such Holder previously shall have given to the Trustee written notice of a
continuing Event of Default, as hereinbefore provided, and unless also the
Holders of not less than 25% in principal amount of the Securities of such
Series then Outstanding shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable indemnity as it may
require against the costs, expenses and liabilities to be incurred therein or
thereby (including the reasonable fees of counsel for the Trustee), and the
Trustee, for 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to this Section 6.06; it being understood and
intended, and being expressly covenanted by the taker and Holder of every
Security with every other taker and Holder and the Trustee, that no one or more
Holders of Securities shall have any right in any manner whatever by virtue or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of the Holders of any other of such Securities, or to obtain or seek
to obtain priority over or preference to any other such Holder, or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities. For the
protection and enforcement of the provisions of this Section, each and every
Holder and the Trustee shall be entitled to such relief as can be given either
at law or in equity.
Notwithstanding any other provisions in this Indenture, the right of
any Holder of any Security to receive payment of the principal of and interest
on such Security, on or after the respective due dates expressed in such
Security (or, in the case of redemption on or after the date fixed for
redemption), or to institute suit for the enforcement of any such payment on or
after such respective dates shall not be impaired or affected without the
consent of such Holder.
Section 6.07. Rights and Remedies Cumulative. All powers and remedies
given by this Article Six to the Trustee or to the Holders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the Holders, by
judicial proceedings or otherwise, to enforce the performance or observance of
the covenants and agreements contained in this Indenture, and no delay or
omission of the Trustee or of any Holder of any of the Securities to exercise
any right or power accruing upon any default occurring and continuing as
aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 6.06, every power and remedy given by this Article Six or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the Holders. 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 6.08. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 6.06, every right and remedy given by this
Article Six or by law to the Trustee or to
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the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 6.09. Control By Holders; Waiver of Past Defaults. The Holders
of a majority in principal amount of the Securities of a Series at the time
Outstanding (determined as provided in Section 8.04) and with respect to which
an Event of Default shall have occurred and be continuing 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; provided, however, that, subject to Section 7.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in
reliance upon an Opinion of Counsel determines that the action so directed may
not lawfully be taken, or if the Trustee in good faith shall, by a Responsible
Officer or Officers of the Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial to
the rights of Holders not parties to such direction, and provided further that
nothing in this Indenture shall impair the right of the Trustee to take any
action deemed proper by the Trustee and which is not inconsistent with such
direction by the Holders.
The Company may set a special record date for purposes of determining
the identity of the Holders of Securities entitled to vote or consent to any
action by vote or consent authorized or permitted by this Section 6.09. Such
record date shall be the later of 15 days prior to the first solicitation of
such consent or the date of the most recent list of holders furnished to the
Trustee pursuant to Section 5.01 of this Indenture prior to such solicitation.
The Holders of not less than a majority in principal amount of the
Securities of any Series at the time Outstanding (determined as provided in
Section 8.04) may on behalf of the Holders of all the Securities of such Series
waive any past Event of Default with respect to such Series and its consequences
(subject to Section 6.02), except a continuing Event of Default specified in
Section 6.01(a), (b) or (c), or in respect of a covenant or provision hereof
which under Article Ten cannot be modified or amended without the consent of the
Holder of each Security so affected. Upon any such waiver, the Company, the
Guarantor, the Trustee and the Holders of the Securities of such Series shall be
restored to their former positions and rights hereunder, respectively, and such
Event of Default shall be deemed to have been cured and not continuing for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Event of Default or impair any right consequent thereon.
Section 6.10. Trustee to Give Notice of Defaults Known to It, But May
Withhold in Certain Circumstances. The Trustee shall, within 90 days after the
occurrence of any default hereunder with respect to the Securities of any
Series, give to the Holders of the Securities of such Series in the manner and
to the extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of said Section 5.04, notice of such default known to
the Trustee unless such default shall have been cured, remedied or waived before
the giving of such notice (the term "default" for the purposes of this Section
6.10 being hereby defined to be the events specified in Section 6.01 and any
additional events specified in the terms of any Series of Securities pursuant to
Section 2.01 not including any periods of grace provided for therein, and
irrespective of the giving of written notice specified in clause (d) of Section
6.01 and in any such terms); provided, that except in the case of default in the
payment of the principal of or interest on any of the Securities of such Series,
the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders of the Securities
of such Series.
Section 6.11. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder of any Security by such Holder's 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, against any party litigant in such suit,
having due regard to the merits and good
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faith of the claims or defenses made by such party litigant; but the provisions
of this Section 6.11 shall not apply to any suit instituted by the Trustee, to
any suit instituted by any Holder of Securities of any Series, or group of such
Holders, holding in the aggregate more than ten percent in principal amount of
the Securities of such Series Outstanding, or to any suit instituted by any
Holder for the enforcement of the payment of the principal of or any interest
or premium on any Security, on or after the due date expressed in such Security
(or in the case of any redemption, on or after the Redemption Date).
ARTICLE SEVEN
CONCERNING THE TRUSTEE
Section 7.01. Certain Duties and Responsibilities of Trustee. The
Trustee, prior to the occurrence of an Event of Default and after the curing,
remedying or waiving of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default has occurred (which has not
been cured, remedied or waived), 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 or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, provided, however, that:
(a) prior to the occurrence of an Event of Default and after
the curing, remedying or waiving of all Events of Default which may
have occurred:
(1) the duties and obligations of the Trustee shall
be determined solely by the express provisions of this
Indenture and the Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on the part of the
Trustee, the 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
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of Securities pursuant to Section 6.09
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties hereunder or in the
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exercise of any of its rights or powers, if there is reasonable ground for
believing that the repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
Section 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond, debenture, note 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, direction, order or demand of the Company or
the Guarantor mentioned herein shall be sufficiently evidenced by an
Officer's Certificate (unless other evidence in respect thereof shall
be herein specifically prescribed); and any resolution of the Board of
Directors of the Company or of the Guarantor may be evidenced to the
Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the case may be.
(c) The Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in accordance
with such written advice or Opinion of Counsel.
(d) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Securityholders, pursuant to the
provisions of this Indenture, unless such Securityholders shall have
offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which may be incurred therein or
thereby.
(e) The Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond, debenture, note or other paper or document,
unless requested in writing so to do by the Holders of Securities
pursuant to Section 6.09; provided, however, that if the payment within
a reasonable time to the Trustee of the costs, expenses or liabilities
likely to be incurred by it in the making of such investigation is, in
the opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the Trustee
may require reasonable indemnity against such costs, expenses or
liabilities as a condition to so proceeding; and provided further, that
nothing in this subsection (f) shall require the Trustee to give the
Securityholders any notice other than that required by Section 6.10.
The reasonable expense of every such examination shall be paid by the
Company or, if paid by the Trustee, shall be repaid by the Company upon
demand.
(g) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(h) The Trustee shall be under no responsibility for the
approval by it in good faith of any expert for any of the purposes
expressed in this Indenture.
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Section 7.03. Trustee Not Responsible for Recitals or Application of
Proceeds. The recitals contained herein and in the Securities (other than the
certificate of authentication on the Securities) shall be taken as the
statements of the Company or the Guarantor, as the case may be, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any of the Securities or of the proceeds thereof.
Section 7.04. Trustee May Own Securities. The Trustee, any Paying
Agent, registrar or any agent of the Company or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
with the same rights it would have if it were not Trustee, Paying Agent,
registrar or such other agent.
Section 7.05. Moneys Received by Trustee to be Held in Trust. Moneys
held by the Trustee in trust need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the
Company.
Section 7.06. Trustee Entitled to Compensation, Reimbursement and
Indemnity. The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of any express trust), and the Company will pay or reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in connection with the acceptance or
administration of its trust under this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all
Persons not regularly in its employ) except any such expense, disbursement or
advance as may arise from its negligence or bad faith. The Company also agrees
to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on the part of the
Trustee and arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim of liability in the premises. The obligations
of the Company under this Section to compensate the Trustee, to pay or reimburse
the Trustee for expenses, disbursements and advances and to indemnify and hold
harmless the Trustee shall constitute additional indebtedness hereunder and
shall survive the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the payment of principal of or interest or redemption premium on
particular Securities.
Section 7.07. Right of Trustee to Rely on Officers' Certificate Where
No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate of the Company or the Guarantor delivered to the Trustee, and such
Certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered or
omitted by it under the provisions of this Indenture upon the faith thereof.
Section 7.08. Disqualification; Conflicting Interest. (a) If the
Trustee has or shall acquire any conflicting interest, as defined in this
Section 7.08, it shall, within 90 days after ascertaining that it has such
conflicting interest, and if the Event of Default to which such conflicting
interest relates has not been cured or duly waived or otherwise eliminated
before the end of such 90-day period, the Trustee shall either eliminate such
conflicting interest or, except as otherwise provided in this Section 7.08,
resign in the manner and with the effect specified in Section 7.10, such
resignation to become effective upon the appointment of a successor trustee and
such successor's acceptance of such appointment, and the Company shall take
prompt steps to have a successor appointed in the manner provided in Section
7.10.
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(b) In the event that the Trustee shall fail to comply with the
provisions of subsection (a) of this Section, the Trustee shall, within ten days
after the expiration of such 90-day period, transmit notice of such failure to
the Securityholders in the manner and to the extent provided in subsection (c)
of Section 5.04 with respect to reports pursuant to subsection (a) of said
Section 5.04.
(c) Subject to the provisions of Section 6.11 of this Indenture, unless
the Trustee's duty to resign is stayed as provided in subsection (f) of this
Section 7.08, any Holder who has been a bona fide Holder of Securities for at
least six months may, on such Holder's behalf and on behalf of all other Holders
similarly situated, petition any court of competent jurisdiction for the removal
of such Trustee and the appointment of a successor, if such Trustee fails after
written request thereof by such Holder to comply with the provisions of
subsection (a) of this Section 7.08.
(d) For the purposes of this Section 7.08 the Trustee shall be deemed
to have a conflicting interest with respect to the Securities of any Series if
an Event of Default (exclusive of any period of grace or requirement of notice)
has occurred with respect to securities of such Series and:
(1) the Trustee is trustee under another indenture under which
any other securities, or certificates of interest or participation in
any other securities, of the Company or the Guarantor or any other
obligor on the Securities are outstanding or is trustee for more than
one outstanding series of securities, as hereinafter defined, under a
single indenture of the Company, the Guarantor or any other obligor on
the Securities, unless such other indenture is a collateral trust
indenture under which the only collateral consists of Securities,
provided that there shall be excluded from the operation of this
paragraph, this Indenture with respect to the Securities of any other
Series outstanding, the Indenture dated as of ________ between
________________ and the Trustee, an Indenture dated as of _________
between _____________________ and any other indenture or indentures
under which other securities, or certificates of interest or
participation in other securities, of the Company or the Guarantor or
any other obligor on the Securities are outstanding, if (A) this
Indenture is and such other indenture or indentures (and all series of
securities issued thereunder) are wholly unsecured and rank equally,
and such other indenture or indentures (and such series) are hereafter
qualified under the Trust Indenture Act of 1939, unless the Commission
shall have found and declared by order pursuant to subsection (b) of
Section 305 or subsection (c) of Section 307 of the Trust Indenture Act
of 1939, that differences exist between the provisions of this
Indenture with respect to Securities of such Series and one or more
other Series, or the provisions of this Indenture and the provisions of
such other indenture or indentures (or such series), which are so
likely to involve a material conflict of interest as to make it
necessary in the public interest or for the protection of investors to
disqualify the Trustee from acting as such under this Indenture with
respect to Securities of such Series and such other Series, or under
this Indenture and such other indenture or indentures, or (B) the
Company or the Guarantor shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing
thereon, that the trusteeship under this Indenture with respect to
Securities of such Series and such other Series, or under this
Indenture and such other indenture, is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee
from acting as such under this Indenture with respect to Securities of
such Series and such other Series, or under this Indenture and one of
such indentures,
(2) the Trustee or any of its directors or executive officers
is an underwriter for the Company or the Guarantor or any other obligor
on the Securities,
(3) the Trustee directly or indirectly controls or is directly
or indirectly controlled by or is under direct or indirect common
control with an underwriter for the Company or the Guarantor or any
other obligor on the Securities,
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(4) the Trustee or any of its directors or executive officers
is a director, officer, partner, employee, appointee or representative
of the Company or the Guarantor or any other obligor on the Securities,
or of an underwriter (other than the Trustee itself) for the Company or
the Guarantor or any other obligor on the Securities who is currently
engaged in the business of underwriting, except that (A) one individual
may be a director and/or an executive officer of the Trustee and a
director and/or an executive officer of the Company or the Guarantor or
any other obligor on the Securities, but may not be at the same time an
executive officer of both the Trustee and the Company or the Guarantor
or any other obligor on the Securities; (B) if and so long as the
number of directors of the Trustee in office is more than nine, one
additional individual may be a director and/or an executive officer of
the Trustee and a director of the Company or the Guarantor or any other
obligor on the Securities; and (C) the Trustee may be designated by the
Company or the Guarantor or any other obligor on the Securities or by
an underwriter for the Company or the Guarantor or any other obligor on
the Securities to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent or depository, or
in any other similar capacity, or, subject to the provisions of
paragraph (1) of this subsection (d), to act as trustee whether under
an indenture or otherwise,
(5) ten percent or more of the voting securities of the
Trustee are beneficially owned either by the Company or the Guarantor
or any other obligor on the Securities or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such Persons;
or ten percent or more of the voting securities of the Trustee are
beneficially owned either by an underwriter for the Company or the
Guarantor or any other obligor on the Securities or by any director,
partner or executive officer thereof, respectively, or are beneficially
owned, collectively, by any two or more such Persons,
(6) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default as
hereinafter defined, (A) five percent or more of the voting securities,
or ten percent or more of any other class of security, of the Company
or the Guarantor or any other obligor on the Securities, not including
the Securities and securities issued under any other indenture under
which the Trustee is also trustee, or (B) ten percent or more of any
class of security of an underwriter for the Company or the Guarantor or
any other obligor on the Securities,
(7) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, five percent or more of the voting securities of
any Person who, to the knowledge of the Trustee, owns ten percent or
more of the voting securities of, or controls directly or indirectly or
is under direct or indirect common control with the Company or the
Guarantor or any other obligor on the Securities,
(8) the Trustee is the beneficial owner of, or holds as
collateral security for an obligation which is in default, as
hereinafter defined, ten percent or more of any class of security of
any Person who, to the knowledge of the Trustee, owns 50% or more of
the voting securities of the Company or the Guarantor or any other
obligor on the Securities,
(9) the Trustee owns on the date of the occurrence of such
Event of Default (exclusive of any period of grace or requirement of
notice) or any anniversary thereof while such Event of Default remains
outstanding, in the capacity of executor, administrator, testamentary
or inter vivos trustee, guardian, committee or conservator, or in any
other similar capacity an aggregate of 25% or more of the voting
securities or of any class of security, of any Person, the beneficial
ownership of a specified percentage of which would have constituted a
conflicting interest under paragraph (6), (7) or (8) of this subsection
(d). As to any such securities of which the Trustee acquired ownership
through becoming executor, administrator or testamentary trustee of an
estate which included them, the
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provisions of the preceding sentence shall not apply, for a period of two
years from the date of such acquisition, to the extent that such
securities included in such estate do not exceed 25% of such voting
securities or 25% of any such class of security. Promptly after the date
of the occurrence of any such Event of Default and annually in each
succeeding year that the Securities or any Series thereof remain in
default, the Trustee shall make a check of its holdings of such securities
in any of the above-mentioned capacities as of such date. If the Company
or the Guarantor or any other obligor on the Securities fails to make
payment in full of principal of or interest on any of the Securities when
and as the same becomes due and payable and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of its holdings of
such securities in any of the above-mentioned capacities as of the date
of the expiration of such 30-day period, and after such date,
notwithstanding the foregoing provisions of this paragraph (9), all
such securities so held by the Trustee, with sole or joint control over
such securities vested in it, shall, but only so long as such failure
shall continue, be considered as though beneficially owned by the
Trustee for the purposes of paragraphs (6), (7) and (8) of this
subsection (d), or
(10) except under the circumstances described in paragraphs
(1), (3), (4), (5) or (6) of Section 7.13(b), the Trustee shall be or
become a creditor of the Company or the Guarantor or any other obligor
on the Securities.
The specifications of percentages in paragraphs (5) to (9), inclusive,
of this subsection (d) shall not be construed as indicating that the ownership
of such percentages of the securities of a Person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
paragraph (3) or (7) of this subsection (d).
For the purposes of paragraphs (6), (7), (8) and (9) of this subsection
(d) only, (A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not include
any note or other evidence of indebtedness issued to evidence an obligation to
repay moneys lent to a Person by one or more banks, trust companies or banking
firms, or any certificate of interest or participation in any such note or
evidence of indebtedness; (B) an obligation shall be deemed to be in default
when a default in payment of principal shall have continued for 30 days or more
and shall not have been cured; and (C) the Trustee shall not be deemed to be the
owner or Holder of (i) any security which it holds as collateral security (as
trustee or otherwise) for an obligation which is not in default as defined in
clause (B) above, or (ii) any security which it holds as collateral security
under this Indenture, irrespective of any default hereunder, or (iii) any
security which it holds as agent for collection, or as custodian, escrow agent
or depository, or in any similar representative capacity.
(e) For the purposes of this Section 7.08:
(1) The term "underwriter" when used with reference to the
Company or the Guarantor or any other obligor on the Securities shall
mean every Person who, within one year prior to the time as of which
the determination is made, has purchased from the Company or the
Guarantor or any other obligor on the Securities with a view to, or has
offered or sold for the Company or the Guarantor or any other obligor
on the Securities in connection with, the distribution of any security
of the Company or the Guarantor or any other obligor on the Securities
outstanding at such time, or has participated or has had a direct or
indirect participation in any such undertaking, or has participated or
has had a participation in the direct or indirect underwriting of any
such undertaking, but such term shall not include a Person whose
interest was limited to a commission from an underwriter or dealer not
in excess of the usual and customary distributors' or sellers'
commission.
(2) The term "director" shall mean any director of a
corporation or any individual performing similar functions with respect
to any organization whether incorporated or unincorporated.
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(3) The term "trust" shall include only a trust where the
interest or interests of the beneficiary or beneficiaries are evidenced
by a security.
(4) The term "voting security" shall mean any security
presently entitling the owner or Holder thereof to vote in the
direction or management of the affairs of a Person, or any security
issued under or pursuant to any trust, agreement or arrangement whereby
a trustee or trustees or agent or agents for the owner or Holder of
such security are presently entitled to vote in the direction or
management of the affairs of a Person.
(5) The term "executive officer" shall mean the president,
every vice-president, every trust officer, the cashier, the secretary
and the treasurer of a corporation, and any individual customarily
performing similar functions with respect to any organization whether
incorporated or unincorporated, but shall not include the chairman of
the board of directors.
(6) Except for purposes of paragraphs (6), (7), (8) and (9) of
subsection (d) of this Section 7.08, the term "security" or
"securities" shall mean any note, stock, treasury stock, bond,
debenture, evidence of indebtedness, certificate of interest or
participation in any profit-sharing agreement, collateral-trust
certificate, pre-organization certificate or subscription, transferable
share, investment contract, voting-trust certificate, certificate of
deposit for a security, fractional undivided interest in oil, gas or
other mineral rights, or, in general, any interest or instrument
commonly known as a "security" or any certificate of interest or
participation in, temporary or interim certificate for, receipt for,
guarantee of, or warrant or right to subscribe to or purchase, any of
the foregoing.
(7) For the purpose of subsection (d)(1) of this Section 7.08,
the term "Series of securities" or "Series" means a Series, class or
group of securities issuable under an indenture pursuant to whose terms
Holders of one such Series may vote to direct the indenture trustee, or
otherwise take action pursuant to a vote of such holders, separately
from holders of another such Series; provided, that "Series of
securities" or "Series" shall not include any Series of securities
issuable under an indenture if all such Series rank equally and are
wholly unsecured.
The percentages of voting securities and other securities specified in
this Section 7.08 shall be calculated in accordance with the following
provisions:
(A) A specified percentage of the voting securities of the
Trustee, the Company, the Guarantor or any other Person referred to in
this Section 7.08 (each of whom is referred to as a "Person" in this
paragraph) means such amount of the outstanding voting securities of
such Person as entitles the Holder or Holders thereof to cast such
specified percentage of the aggregate votes which the Holders of all
the outstanding voting securities of such Person are entitled to cast
in the direction or management of the affairs of such Person.
(B) A specified percentage of a class of securities of a
Person means such percentage of the aggregate amount of securities of
the class outstanding.
(C) The term "amount", when used in regard to securities,
means the principal amount if relating to evidences of indebtedness,
the number of shares if relating to capital shares, and the number of
units if relating to any other kind of security.
(D) The term "outstanding" means issued and not held by or for
the account of the issuer. The following securities shall not be deemed
outstanding within the meaning of this definition:
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(i) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(ii) securities of an issuer held in a sinking fund
relating to another class of securities of the issuer, if the
obligation evidenced by such other class of securities is not
in default as to principal or interest or otherwise;
(iii) securities pledged by the issuer thereof as
security for an obligation of the issuer not in default as to
principal or interest or otherwise; and
(iv) securities held in escrow if placed in escrow by the
issuer thereof;
provided, however, that any voting securities of an issuer shall be
deemed outstanding if any Person other than the issuer is entitled to
exercise the voting rights thereof.
(E) A security shall be deemed to be of the same class as
another security if both securities confer upon the Holder or Holders
thereof substantially the same rights and privileges, provided,
however, that, in the case of secured evidences of indebtedness, all of
which are issued under a single indenture, differences in the interest
rates or maturity dates of various Series thereof shall not be deemed
sufficient to constitute such Series different classes, and provided
further that, in the case of unsecured evidences of indebtedness,
differences in the interest rate or maturity dates thereof shall not be
deemed sufficient to constitute them securities of different classes,
whether or not they are issued under a single indenture.
(f) Except in the case of a default in the payment of the principal of
or interest on any Securities, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 7.08 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under this Indenture may be cured or waived during a reasonable
period and under the procedures described in such application, and (ii) a stay
of the Trustee's duty to resign will not be inconsistent with the interests of
Holders of such Series of Securities. The filing of such an application shall
automatically stay the performance of the duty to resign until the Commission
orders otherwise. Any resignation of the Trustee shall become effective only
upon the appointment of a successor trustee and such successor's acceptance of
such appointment.
Section 7.09. Requirements for Eligibility of Trustee. There shall
always be at least one Trustee hereunder. The Trustee hereunder shall at all
times be a corporation organized and doing business as a commercial bank under
the laws of the United States or any state thereof or of the District of
Columbia or a corporation or other Person permitted to act as a trustee by the
Commission and, in each case, authorized under such laws to exercise corporate
trust powers, having a combined capital and surplus of at least $100,000,000 and
subject to supervision or examination by Federal, State or District of Columbia
authority. 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 for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. No
obligor on the Securities or Person directly or indirectly controlling,
controlled by or under common control with such obligor shall serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance with
the provisions of this Section 7.09, the Trustee shall resign immediately in the
manner and with the effect specified in this Article Seven.
Section 7.10. Resignation and Removal of Trustee; Appointment of
Successor. (a) The Trustee, or any trustee or trustees hereafter appointed, may
at any time resign with respect to one or more or all Series of Securities by
giving written notice of such resignation to the Company and to the Guarantor
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and by giving to the Holders of Securities notice thereof in the manner and to
the extent provided in subsection (c) of Section 5.04 with respect to reports
pursuant to subsection (a) of Section 5.04. Upon receiving such notice of
resignation and if the Company or the Guarantor shall deem it appropriate,
evidence satisfactory to it of such mailing to the Holders, the Company shall
promptly appoint a successor trustee with respect to all Series of Securities
or, if appropriate, the applicable Series by written instrument executed by an
authorized officer of the Company, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed with respect to any Series and
have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Holder who has
been a bona fide Holder of a Security or Securities of the applicable Series for
at least six months may, subject to the provisions of Section 6.11, on such
Holder's behalf and on behalf of all others similarly situated, petition any
such court for the appointment of a successor trustee. Such court may thereupon
after such notice, if any, as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of
subsection (a) of Section 7.08 after written request therefor by the
Company or by any Securityholder who has been a bona fide Holder of a
Security or Securities of the applicable Series for at least six
months, or
(2) the Trustee shall cease to be eligible in accordance with
the provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
(4) The Company shall determine that the Trustee has failed to
perform its obligations under this Indenture in any material respect,
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument executed by an authorized officer of the
Company, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.11, any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may, on such Person's behalf and on behalf
of all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in principal amount of the Securities
Outstanding (determined as provided in Section 8.04) may at any time remove the
Trustee and appoint a successor trustee by written instrument or instruments
signed by such Holders or their attorneys-in-fact duly authorized, or by the
affidavits of the permanent chairman and secretary of a meeting of the
Securityholders evidencing the vote upon a resolution or resolutions submitted
thereto with respect to such removal and appointment (as provided in Article
Nine), and by delivery thereof to the Trustee so removed, to the successor
trustee and to the Company and the Guarantor.
(d) Any resignation or removal of the Trustee and any appointment of a
successor trustee pursuant to any of the provisions of this Section shall become
effective upon acceptance of appointment by the successor trustee as provided in
Section 7.11.
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Section 7.11. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 7.10 shall execute,
acknowledge and deliver to the Company, the Guarantor and to its predecessor
trustee an instrument accepting such appointment hereunder, and thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations with respect
to such Series of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amounts then due it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the
rights and powers with respect to the trustee so ceasing to act. Upon written
request of any such successor trustee, the Company and the Guarantor shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property or
funds held or collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee shall
be qualified under the provisions of Section 7.08 and eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in
this Section 7.11, the successor trustee shall at the expense of the Company
transmit notice of the succession of such trustee hereunder to the Holders of
Securities in the manner and to the extent provided in subsection (c) of Section
5.04 with respect to reports pursuant to subsection (a) of said Section 5.04.
Section 7.12. Successor to Trustee by Merger, 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 qualified under the provisions of
Section 7.08 and eligible under the provisions of Section 7.09, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate
such Securities either in the name of any predecessor hereunder or in the name
of the successor Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee or
to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 7.13. Preferential Collection of Claims Against Company or
Guarantor. (a) Subject to the provisions of subsection (b) of this Section 7.13,
if the Trustee shall be or shall become a creditor, directly or indirectly,
secured or unsecured, of the Company or of the Guarantor or any other obligor on
the Securities within three months prior to a default, as defined in subsection
(c) of this Section, or subsequent to such a default, then, unless and until
such default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities for which it is acting as Trustee, and the Holders of other indenture
securities (as defined in subsection (c) of this Section 7.13):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such three months' period,
and valid as against the Company, the Guarantor or such other
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obligor on the Securities and their respective other creditors, except
any such reduction resulting from the receipt or disposition of any
property described in paragraph (2) of this subsection, or from the
exercise of any right of set-off which the Trustee could have exercised
if a petition in bankruptcy had been filed by or against the Company or
the Guarantor or such other obligor on the Securities, as the case may be,
upon the date of such default; and
(2) all property received by the Trustee in respect of any
claims as such creditor, either as security therefor, or in
satisfaction or composition thereof, or otherwise, after the beginning
of such three months' period, or an amount equal to the proceeds of any
such property if disposed of, subject, however, to the rights, if any,
of the Company or the Guarantor or such other obligor on the
Securities, as the case may be, and their respective other creditors in
such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than the Company or the
Guarantor or such other obligor on the Securities, as the case may be)
who is liable thereon, and (ii) the proceeds of the bona fide sale of
any claim by the Trustee to a third Person, and (iii) distributions
made in cash, securities or other property in respect of claims filed
against the Company or the Guarantor or such other obligor on the
Securities, as the case may be, in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United
States Code or applicable State laws;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such three months' period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was created after the
beginning of such three months' period and such property was received
as security therefor simultaneously with the creation thereof, and if
the Trustee shall sustain the burden of proving that at the time such
property was so received, the Trustee had no reasonable cause to
believe that a default, as defined in subsection (c) of this Section
7.13 would occur within three months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property held as security for
such claim as provided in such paragraph (B) or (C), as the case may
be, to the extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted
after the beginning of such three months' period for property held as security
at the time of such substitution shall, to the extent of the fair value of the
property released, have the same status as the property released, and to the
extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaying or refunding
any preexisting claim of the Trustee as such creditor, such claim shall have the
same status as such preexisting claim.
If the Trustee shall be required to account, the funds and property
held in such special account and the proceeds thereof shall be apportioned among
the Trustee, the Holders of Securities for which it is acting as Trustee, and
the Holders of other indenture securities in such manner that the Trustee, such
Securityholders and the Holders of other indenture securities realize, as a
result of payments from such special account and payments of dividends on claims
filed against the Company or the Guarantor or such other obligor on the
Securities, as the case may be, in bankruptcy or receivership or in proceedings
for
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reorganization pursuant to Title 11 of the United States Code or applicable
State law, the same percentage of their respective claims, figured before
crediting to the claim of the Trustee anything on account of the receipt by it
from the Company or the Guarantor or such other obligor on the Securities, as
the case may be, of the funds and property in such special account and before
crediting to the respective claims of the Trustee, such Securityholders, and the
Holders of other indenture securities dividends on claims filed against the
Company or the Guarantor or such other obligor on the Securities, as the case
may be, in bankruptcy or receivership or in proceedings for reorganization
pursuant to Title 11 of the United States Code or applicable State law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim in bankruptcy or receivership or in
proceedings for reorganization pursuant to Title 11 of the United States Code or
applicable State law, whether such distribution is made in cash, securities or
other property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion among the Trustee, such Securityholders, and the Holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
Holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claim, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of
such three months' period shall be subject to the provisions of this subsection
(a) as though such resignation or removal had not occurred. If any Trustee has
resigned or been removed prior to the beginning of such three months' period, it
shall be subject to the provisions of this subsection (a) if and only if the
following conditions exist:
(i) the receipt of property or reduction of claim which would
have given rise to the obligation to account, if such Trustee had
continued, as trustee, occurred after the beginning of such three
months' period; and
(ii) such receipt of property or reduction of claim occurred
within three months after such resignation or removal.
In every case commenced under the Bankruptcy Act of 1898, or any
amendment thereto enacted prior to November 6, 1978, all references to periods
of three months shall be deemed to be references to periods of four months.
(b) There shall be excluded from the operation of subsection (a) of
this Section 7.13 a creditor relationship arising from:
(1) the ownership or acquisition of securities issued under
any indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advance and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in Section
5.04(c) with respect to reports pursuant to subsections (a) and (b)
thereof, respectively;
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(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depository, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented, or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c) of
this Section 7.13;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company or the Guarantor or any other obligor on the
Securities; and
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
subsection (c) of this Section 7.13.
(c) As used in this Section 7.13 the following terms shall be accorded
the following definitions:
(1) the term "default" shall mean any failure to make payment
in full of the principal of and any premium or interest on any of the
Securities or on the other indenture securities when and as such
principal or interest becomes due and payable.
(2) the term "other indenture securities" shall mean
securities upon which the Company or the Guarantor or any other obligor
on the Securities is an "obligor" (as defined in the Trust Indenture
Act of 1939, as amended) Outstanding under any other indenture (A)
under which the Trustee is also trustee, (B) which contains provisions
substantially similar to the provisions of subsection (a) of this
Section 7.13, and (C) under which a default exists at the time of the
apportionment of the funds and property held in said special account.
(3) the term "cash transaction" shall mean any transaction in
which full payment for goods or securities sold is made within seven
days after delivery of the goods or securities in currency or in checks
or other orders drawn upon banks or bankers and payable upon demand.
(4) the term "self-liquidating paper" shall mean any draft,
bill of exchange, acceptance or obligation which is made, drawn,
negotiated or incurred by the Company or the Guarantor or any other
obligor on the Securities for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon, the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security
is received by the Trustee simultaneously with the creation of the
creditor relationship with the Company or the Guarantor or any other
obligor on the Securities arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
ARTICLE EIGHT
CONCERNING THE SECURITYHOLDERS
Section 8.01. Evidence of Action by Securityholders. Whenever in this
Indenture it is provided that the Holders of a specified percentage in principal
amount of the Securities of any or all Series may take
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any action (including the making of any demand or request, the giving of any
notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the Holders of such specified percentage
have joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by such Securityholders in Person or by
agent or proxy appointed in writing, or (b) by the record of such Holders of
Securities voting in favor hereof at any meeting of such Securityholders duly
called and held in accordance with the provisions of Article Nine, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of such Securityholders.
Section 8.02. Proof of Execution of Instruments and of Holding of
Securities. Subject to the provisions of Sections 7.01, 7.02 and 9.05, proof of
the execution of any instrument by a Securityholder or such Holder's agent or
proxy and proof of the holding by any Person of any of the Securities shall be
sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of
any instrument may be proved in any reasonable manner acceptable to the
Trustee.
(b) The ownership of fully registered Securities of any Series
(including Global Securities) shall be proved by the Register of such
Securities of such Series, or by certificates of the Security registrar
or registrars thereof.
(c) The amount of bearer Securities held by any Person, the
numbers of such Securities and the date of such Person's holding the
same may be proved by the production of such Securities or by a
certificate in form satisfactory to the Trustee, executed by any trust
company, bank, banker or member of a national securities exchange, as
depository.
The Trustee shall not be bound to recognize any Person as a
Securityholder unless and until such Person's title to the Securities held by it
is proved in the manner in this Article Eight provided.
The record of any Securityholders' meeting shall be proved in the
manner provided in Section 9.06.
The Trustee may accept such other proof or require such additional
proof of any matter referred to in this Section 8.02 as it shall deem
reasonable.
Section 8.03. Who May be Deemed Owners of Securities. Prior to due
presentment for transfer of any fully registered Security, the Company, the
Guarantor, the Trustee and any agent of the Company, the Guarantor or the
Trustee may deem and treat the Person in whose name such Security shall be
registered upon the Register of Securities of the Series of which such Security
is a part as the absolute owner of such Security (whether or not such Security
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
of and interest, subject to Section 2.03, on such Security and for all other
purposes; and neither the Company, the Guarantor or the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such Holder for the time being, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability of moneys payable upon any such
Security. Ownership of bearer Securities shall be proved as provided in Section
8.02(c).
If the Securities of any Series are issued in the form of one or more
Global Securities, the Depository therefor may grant proxies to Persons having a
beneficial ownership in such Global Security or Securities for purposes of
voting or otherwise responding to any request for consent, waiver or other
action which the Holder of such Security is entitled to grant or take under this
Indenture and the Trustee shall accept such proxies for the purposes granted;
provided, that the Trustee, the Company and the Guarantor shall not have any
obligation with respect to the grant of or solicitation by the Depository of
such proxies.
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Section 8.04. Securities Owned by the Company, the Guarantor or
Controlled or Controlling Persons Disregarded for Certain Purposes. In
determining whether the Holders of the requisite principal amount of Securities
have concurred in any demand, direction, request, notice, vote, consent, waiver
or other action under this Indenture, Securities which are owned by the Company,
the Guarantor or any other obligor on the Securities or by any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company, the Guarantor or any other obligor on the Securities
shall be disregarded and deemed not to be Outstanding for the purpose of any
such determination, provided that for the purposes of determining whether the
Trustee shall be protected in relying on any such demand, direction, request,
notice, vote, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee assigned to its principal office knows are so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding for the purposes of this Section 8.04,
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Securities and that the pledgee is not a Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company, the Guarantor or any such other obligor.
Upon request of the Trustee, the Company or the Guarantor, as the case
may be, shall furnish to the Trustee promptly an Officers' Certificate of the
Company or the Guarantor, as the case may be, listing and identifying all
Securities, if any, known by the Company or the Guarantor to be owned or held by
or for the account of the Company or the Guarantor, as the case may be, or any
other obligor on the Securities or by any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company or the Guarantor, as the case may be, or any other obligor on the
Securities; and, subject to the provisions of Section 7.01, the Trustee shall be
entitled to accept such Officers' Certificate of the Company or the Guarantor,
as the case may be, as conclusive evidence of the facts therein set forth and of
the fact that all Securities not listed therein are Outstanding for the purpose
of any such determination.
Section 8.05. Instruments Executed by Securityholders Bind Future
Holders. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 8.01, of the taking of any action by the Holders of the
percentage in principal amount of the Securities specified in this Indenture in
connection with such action, any Holder of a Security which is shown by the
evidence to be included in the Securities the Holders of which have consented to
such action may, by filing written notice with the Trustee at its principal
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Security. Except as aforesaid any such action taken by
the Holder of any Security and any direction, demand, request, notice, waiver,
consent, vote or other action of the Holder of any Security which by any
provisions of this Indenture is required or permitted to be given shall be
conclusive and binding upon such Holder and upon all future Holders and owners
of such Security, and of any Security issued in lieu thereof, irrespective of
whether any notation in regard thereto is made upon such Security. Any action
taken by the Holders of the percentage in principal amount of the Securities of
any or all Series specified in this Indenture in connection with such action
shall be conclusively binding upon the Company, the Guarantor, the Trustee and
the Holders of all of the Securities of such Series subject, however, to the
provisions of Section 7.01.
ARTICLE NINE
SECURITYHOLDERS' MEETINGS
Section 9.01. Purposes for Which Meetings May be Called. A meeting of
Holders of Securities of any or all Series may be called at any time and from
time to time pursuant to the provisions of this Article for any of the following
purposes:
(1) to give any notice to the Company, to the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the waiving
of any default hereunder and its consequences, or to take any other action
authorized to be taken by Holders of Securities of any or all Series, as the
case may be, pursuant to any of the provisions of Article Six;
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(2) to remove the Trustee and appoint a successor trustee pursuant to the
provisions of Article Seven;
(3) to consent to the execution of a Supplemental Indenture pursuant to
the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified principal amount of the Securities of any or all
Series, as the case may be, under any other provision of this Indenture or under
applicable law.
Section 9.02. Manner of Calling Meetings. The Trustee may at any time
call a meeting of Securityholders to take any action specified in Section 9.01,
to be held at such time and at such place in The City of New York, State of New
York, as the Trustee shall determine. Notice of every meeting of
Securityholders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed not less
than 20 nor more than 60 days prior to the date fixed for the meeting.
Section 9.03. Call of Meeting by Company, the Guarantor or
Securityholders. In case at any time the Company, or the Guarantor, as the case
may be, pursuant to a resolution of its Board of Directors, or the Holders of
not less than ten percent in principal amount of the Securities of any or all
Series, as the case may be, then Outstanding, shall have requested the Trustee
to call a meeting of Holders of Securities of any or all Series, as the case may
be, to take any action authorized in Section 9.01 by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed notice of such meeting within 20 days after
receipt of such request, then the Company or the Guarantor or such Holders of
Securities in the amount above specified may determine the time and place in the
City and County of San Francisco, California or The City of New York, New York
for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. Who May Attend and Vote at Meetings. To be entitled to
vote at any meeting of Securityholders a Person shall (a) be a Holder of one or
more Securities with respect to which the meeting is being held; or (b) be a
Person appointed by an instrument in writing as proxy by such Holder of one or
more Securities. The only Persons who shall be entitled to be present or to
speak at any meeting of Securityholders shall be the Persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company or the Guarantor and their
counsel.
Section 9.05. Regulations May be Made by Trustee; Conduct of the
Meeting; Voting Rights; Adjournment. Notwithstanding any other provision of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Securityholders, in regard to proof of the holding
of Securities and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall think fit. Except as
otherwise permitted or required by any such regulations, the holding of
Securities shall be proved in the manner specified in Section 8.02 and the
appointment of any proxy shall be proved in the manner specified in said Section
8.02; provided, however, that such regulations may provide that written
instruments appointing proxies regular on their face, may be presumed valid and
genuine without the proof hereinabove or in said Section 8.02 specified.
The Trustee shall by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company, the Guarantor or by Securityholders as provided in Section 9.03, in
which case the Company, the Guarantor or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by majority vote of the meeting.
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Subject to the provisions of Section 8.04, at any meeting each
Securityholder or proxy shall be entitled to one vote for each $1,000 principal
amount (in the case of Original Issue Discount Securities, such principal amount
shall be equal to such portion of the principal amount as may be specified in
the terms of such Series) of Securities held or represented by such Holder;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote other than by virtue of Securities held by such Person or
instruments in writing as aforesaid duly designating such Person as the Person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned from
time to time and the meeting may be held so adjourned without further notice.
At any meeting of Securityholders, the presence of Persons holding or
representing Securities in principal amount sufficient to take action on the
business for the transaction of which such meeting was called shall constitute a
quorum, but, if less than a quorum is present, the Persons holding or
representing a majority in principal amount of the Securities represented at the
meeting may adjourn such meeting with the same effect for all intents and
purposes, as though a quorum had been present.
Section 9.06. Manner of Voting at Meetings and Record to be Kept. The
vote upon any resolution submitted to any meeting of Securityholders shall be by
written ballots on which shall be subscribed the signatures of the Holders of
Securities or of their representatives by proxy and the principal amount or
principal amounts of the Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
triplicate of all votes cast at the meeting. A record in triplicate of the
proceedings of each meeting of Securityholders shall be prepared by the
secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more Persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was mailed as
provided in Section 9.02. The record shall show the principal amount or
principal amounts of the Securities voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the triplicates shall
be delivered to the Company, one to the Guarantor, and the other to the Trustee
to be preserved by the Trustee.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 9.07. Exercise of Rights to Trustee and Securityholders Not to
be Hindered or Delayed. Nothing in this Article contained shall be deemed or
construed to authorize or permit, by reason of any call of a meeting of
Securityholders or any rights expressly or impliedly conferred hereunder to make
such call, any hindrances or delay in the exercise of any right or rights
conferred upon or reserved to the Trustee or to the Securityholders under any of
the provisions of this Indenture or of the Securities.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
Section 10.01. Purposes for Which Supplemental Indentures May be
Entered Into Without Consent of Securityholders. Without the consent of the
Holders of any Securities, the Company, the Guarantor and the Trustee may from
time to time and at any time enter into one or more Supplemental Indentures
(which shall comply with the provisions of the Trust Indenture Act of 1939 as
then in effect) for one or more of the following purposes:
(a) if deemed appropriate by the Company or the Guarantor, as the case
may be, or required by law, to evidence the succession of another corporation to
the Company or to the Guarantor or respective
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successive successions and the assumption by the successor corporation of the
covenants, agreements and obligations of the Company or the Guarantor pursuant
to Articles Four and Eleven hereof,
(b) to add to the covenants of the Company or the Guarantor such
further covenants, restrictions or conditions as their Boards of Directors,
respectively, and the Trustee shall consider to be for the protection of the
Holders of all or any Series of Securities (and if such covenants, restrictions
or conditions are to be for the benefit of less than all Series of Securities,
stating that such covenants, restrictions or conditions are expressly being
included solely for the benefit of such Series), and to make the occurrence, or
the occurrence and continuance, of a default in any such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided, however, that in respect to any such additional
covenant, restriction or condition such Supplemental Indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the Trustee
upon such default,
(c) to add or change any of the provisions of this Indenture to such
extent as shall be necessary to facilitate the issuance of Securities in (i)
global form or (ii) bearer form, registerable or not registerable as to
principal or principal and interest, and with or without coupons,
(d) to change or eliminate any of the provisions of this Indenture;
provided, however, that any such change or elimination shall become effective
only when there is no Security of any Series Outstanding created prior to the
execution of such Supplemental Indenture which is entitled to the benefit of
such provision,
(e) to establish the form or terms of Securities of any Series as
permitted by Sections 2.01 and 2.02,
(f) to appoint, at the request of the Trustee, a successor Trustee for
a particular Series of Securities to act as such pursuant to the provisions of
this Indenture and to add to or change the provisions of this Indenture to such
extent as shall be necessary to facilitate the performance of the duties of such
successor Trustee and
(g) to cure any ambiguity or to correct or supplement any provisions
contained herein or in any Supplemental Indenture which may be defective or
inconsistent with any other provision contained herein or in any Supplemental
Indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture or any Supplemental Indenture which shall not
adversely affect the interests of the Holders of the Securities at the time
Outstanding.
Section 10.02. Modification of Indenture with Consent of Holders of
Securities. With the consent (evidenced as provided in Section 8.01) of the
Holders of not less than a majority in principal amount of the Securities of all
Series at the time Outstanding (determined as provided in Section 8.04) affected
by such Supplemental Indenture (voting as one class), the Company, the Guarantor
and the Trustee may from time to time and at any time enter into one or more
Supplemental Indentures (which shall comply with the provisions of the Trust
Indenture Act of 1939 as then in effect) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any Supplemental Indenture or of modifying in any manner
the rights of the Holders of the Securities of each such Series; provided,
however, that no such Supplemental Indenture shall, without the consent of the
Holders of each Outstanding Security affected thereby:
(a) Change the fixed maturity or Redemption Date of any Security or
reduce the rate of interest thereon or the method of determining such rate of
interest or extend the time of payment of interest or reduce the principal
amount (including the amount of principal of an Original Issue Discount Security
that would be due upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 hereof) thereof or reduce any premium payable upon the
redemption thereof, or change the coin or currency in which any Security or the
interest thereon is payable or impair the right to institute suit for the
enforcement of any such payment on
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or after the maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or deprive the Holders of any Security of any of the benefits
of the Guarantee or
(b) Reduce the percentage in principal amount of the Outstanding
Securities the consent of the Holders of which is required for any such
Supplemental Indenture, or the consent of the Holders of which 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
(c) Change the time of payment or reduce the amount of any minimum
sinking account or fund payment or
(d) Modify any of the provisions of this Section 10.02 of this
Indenture, 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 Security affected thereby.
A Supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular Series of Securities, or which modifies
the rights of Holders of Securities of such Series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other Series.
It shall not be necessary for the consent of the Securityholders under
this Section 10.02 to approve the particular form of any proposed Supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Company, the Guarantor and the
Trustee of any Supplemental Indenture pursuant to the provisions of this Section
10.02, the Company shall mail a notice to the Holders of Securities of each
Series so affected, setting forth in general terms the substance of such
Supplemental Indenture. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplemental Indenture.
Section 10.03. Effect of Supplemental Indentures. Upon the execution of
any Supplemental Indenture pursuant to the provisions of this Article Ten, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company, the Guarantor
and the Holders of Securities shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such Supplemental Indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
The Trustee shall be entitled to receive, and subject to the provisions
of Section 7.01 shall be entitled to rely upon, an Opinion of Counsel as
conclusive evidence that any such Supplemental Indenture complies with the
provisions of this Article Ten and stating that the Securities affected by the
Supplemental Indenture, when such Securities are authenticated and delivered by
the Trustee and executed and issued by the Company and the Guarantor in the
manner and subject to any conditions specified in such Opinion of Counsel, will
be valid and binding obligations of the Company and the Guarantor, except as any
rights thereunder may be limited by bankruptcy, insolvency and other similar
laws affecting the enforcement of creditors' rights generally and by general
equity principles.
Section 10.04. Securities May Bear Notation of Changes by Supplemental
Indentures. Securities authenticated and delivered after the execution of any
Supplemental Indenture pursuant to the provisions of this Article Ten, or after
any action taken at a Securityholders' meeting pursuant to Article Nine, may
bear a notation in form approved by the Trustee as to any matter provided for in
such Supplemental Indenture or as to any action taken at any such meeting. If
the Company, the Guarantor or the Trustee shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Boards of
Directors of the Company and the Guarantor, respectively, to any modification of
this Indenture contained in
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any such Supplemental Indenture may be prepared by the Company and the
Guarantor, authenticated by the Trustee and delivered in exchange for the
Securities then Outstanding.
ARTICLE ELEVEN
PARTICULAR COVENANTS OF THE COMPANY
Section 11.01. Payment of Principal of and Interest on Securities. The
Company covenants that it will duly and punctually pay or cause to be paid the
principal of and any interest and premium on each of the Securities in
accordance with the terms of the Securities and this Indenture. Except with
respect to any Global Securities, if the fully registered Securities of any
Series bear interest, each installment of interest on the Securities of such
Series may at the option of the Company be paid by mailing a check or checks for
such interest payable to the Person entitled thereto pursuant to Section 2.03 to
the address of such Person as it appears on the Register of the Securities of
such Series on the applicable Record Date for such interest payment.
Section 11.02. Maintenance of Offices or Agencies for Transfer,
Registration, Exchange and Payment of Securities. So long as any of the
Securities shall remain Outstanding, the Company covenants that it will maintain
an office or agency in either The City of New York, State of New York, or the
City and County of San Francisco, State of California, where the Securities may
be presented for registration, exchange and transfer as in this Indenture
provided, and where notices and demand to or upon the Company in respect of the
Securities or of this Indenture may be served, and where the Securities may be
presented for payment. In case the Company shall designate and maintain some
office or agency other than a previously designated office or agency, it shall
give the Trustee notice thereof. In case the Company shall fail to maintain any
such office or agency or shall fail to give such notice of the location or of
any change in the location thereof to the Trustee, presentations and demands may
be made and notices may be served at the principal office of the Trustee.
In addition to such office or agency, the Company may from time to time
constitute and appoint one or more other offices or agencies for such purposes
with respect to Securities of any Series, and one or more paying agents for the
payment of Securities of any Series, in such cities or in one or more other
cities, and may from time to time rescind such appointments, as the Company may
deem desirable or expedient, and as to which the Company has notified the
Trustee.
Section 11.03. Assignment; Substitution. The rights and obligations of
the Company under this Indenture and under the Outstanding Securities may be
assigned or transferred to another Person with which the Company is consolidated
or merged or which acquires by conveyance or transfer any of the properties or
assets of the Company or to the Guarantor or to a corporation, all of the
outstanding shares of which (other than directors' qualifying shares) are owned
directly or indirectly by the Guarantor and, provided that the requirements of
this Section 11.03 for such assignment or transfer shall have been met, upon any
such assignment or transfer, all of the obligations of the Company under this
Indenture and the Securities shall cease and the Company shall be released from
its liability as obligor on the Securities and from all other obligations under
this Indenture. In connection with any assignment other than to the Guarantor,
the provisions of Sections 4.01 through 4.08 of Article Four relating to the
guarantee by the Guarantor, shall remain in full force and effect or a new
guaranty agreement of the Guarantor containing provisions substantially the same
as those set forth in Sections 4.01 through 4.08 of Article Four hereof shall
have been executed. Any successor to the Company shall be incorporated or
organized and, in either case, existing under the laws of the United States of
America or one of the States of the United States of America or Canada or one of
the Provinces of Canada and such successor shall assume in a Supplemental
Indenture all of the obligations of the Company. In the event the Company
assigns all of its rights and obligations in respect of this Indenture and all
Outstanding Securities to the Guarantor, the covenants set forth in Sections
4.04, 4.05, 4.06, 4.07 and 4.08 of this Indenture and any other covenants of the
Guarantor included in any Supplemental
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Indenture relating to any series of Securities shall remain in full force and
effect and the Guarantor shall assume in a Supplemental Indenture all of the
obligations of the Company.
Section 11.04. Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, covenants that it will appoint, in the manner provided in Section 7.10,
a Trustee, so that there shall at all times be a Trustee with respect to the
Outstanding Securities.
Section 11.05. Duties of Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the
Trustee with respect to Securities of any Series, it will cause such
Paying Agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the
provisions of this Section 11.05 and Section 12.05,
(1) that it will hold all sums held by it as such
agent for the payment of the principal of or premium, if any
or interest, if any, on the Securities of such Series (whether
such sums have been paid to it by the Company or by any other
obligor on the Securities of such Series) in trust for the
benefit of the Holders of the Securities entitled to such
principal or interest and will notify the Trustee of the
receipt of sums to be so held,
(2) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the
Securities of such Series) to make any payment of the
principal of or interest on the Securities of such Series when
the same shall be due and payable, and
(3) that it will at any time during the continuance
of any Event of Default, upon the written request of the
Trustee, deliver to the Trustee all sums so held in trust by
it.
(b) Whenever the Company shall have one or more Paying Agents
with respect to the Securities of any Series, it will, prior to each
due date of the principal of or any interest on the Securities of such
Series, deposit with a Paying Agent of such Series a sum sufficient to
pay the principal or interest so becoming due, such sum to be held in
trust for the benefit of the Holders of Securities entitled to such
principal or interest, and (unless such Paying Agent is the Trustee)
the Company will promptly notify the Trustee of its action or failure
so to act.
(c) If the Company shall act as its own Paying Agent with
respect to the Securities of any Series, it will, on or before each
Stated Maturity of the principal of or any interest on the Securities
of such Series, set aside, segregate and hold in trust for the benefit
of the Holders of the Securities of such Series, a sum sufficient to
pay such principal or interest so becoming due and will notify the
Trustee of such action, or any failure by it or any other obligor on
the Securities of such Series to take such action and will at any time
during the continuance of any Event of Default, upon the written
request of the Trustee, deliver to the Trustee all sums so held in
trust by it.
(d) Anything in this Section 11.05 to the contrary
notwithstanding, the Company may, at any time, for the purpose of
obtaining a satisfaction and discharge of this Indenture with respect
to one or more or all Series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust
for such Series by it, or any Paying Agent hereunder, as required by
this Section 11.05, and such sums are to be held by the Trustee upon
the trust herein contained.
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ARTICLE TWELVE
DISCHARGE; DEFEASANCE
Section 12.01. Discharge of Indenture. If the Company or the Guarantor
shall pay and discharge or cause to be paid or discharged the entire
indebtedness on all Outstanding Securities by paying or causing to be paid the
principal of (including redemption premium, if any) and interest on the
Outstanding Securities, as and when the same become due and payable or by
delivering to the Trustee, for cancellation by it, all Outstanding Securities,
and if the Company or the Guarantor shall also pay or cause to be paid all other
sums payable hereunder by the Company or the Guarantor, thereupon, upon written
request of the Company or the Guarantor, and upon receipt by the Trustee of such
certificates, if any, as the Trustee shall reasonably require, to the effect
that all conditions precedent to the satisfaction and discharge of the Company's
or the Guarantor's, as the case may be, obligations under this Indenture have
been complied with, this Indenture shall be discharged and terminated and the
Trustee shall forthwith execute proper instruments acknowledging satisfaction of
and discharging and terminating this Indenture with respect to the Company's and
the Guarantor's obligations hereunder and any such other interests.
The Company or the Guarantor may at any time surrender to the Trustee
for cancellation by it any Securities previously authenticated and delivered
which the Company or the Guarantor may have acquired in any manner whatsoever,
and such Securities, upon such surrender and cancellation, shall be deemed to be
paid and retired.
Section 12.02. Discharge of Liability on Securities. Upon the deposit
with the Trustee, in trust, at or before maturity, of money or securities of the
kind and in the necessary amount (as provided in Section 12.04 of this
Indenture) to pay or redeem Outstanding Securities (whether upon or prior to
their maturity or the Redemption Date of such Securities, provided that, if such
Securities are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as in Article Three hereof provided or
provision satisfactory to the Trustee shall have been made for the giving of
such notice), the obligation of the Company duly and punctually to pay or cause
to be paid the principal of and any interest and premium in respect of such
Securities and all liability of the Company and the Guarantor in respect of such
payment shall cease, terminate and be completely discharged and the Holders
thereof shall thereafter be entitled only to payment out of the money or
securities deposited with the Trustee as aforesaid for their payment; provided,
however, that this discharge of the Company's obligation so to pay and of the
liability of the Company and the Guarantor in respect of such payment shall not
occur unless the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such Series will not
recognize income, gain or loss for Federal income tax purposes as a result of
such discharge.
Section 12.03. Discharge of Certain Covenants and Other Obligations.
Upon the deposit with the Trustee, in trust, prior to maturity of money or
securities of the kind and in the necessary amount (as provided in Section 12.04
of this Indenture) to pay or redeem Outstanding Securities of one or more Series
(whether upon or prior to their maturity or the Redemption Date of such
Securities, provided that, if such Securities are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as in Article
Three hereof provided or provision satisfactory to the Trustee shall have been
made for the giving of such notice), all of the obligations, covenants and
agreements of the Guarantor with respect to such Securities under Sections 4.04,
4.05, 4.06 and 4.07 hereof shall cease, terminate and be completely discharged.
In addition, upon such deposit any additional covenants and agreement of the
Guarantor which may be set forth in any Supplemental Indenture and applicable to
such Securities shall also cease, terminate and be completely discharged, unless
the Guarantor shall deliver to the Trustee a written election to have any such
covenants continue.
Section 12.04. Discharge of Certain Obligations Upon Deposit of Money
or Securities with Trustee. The conditions for deposit of money or securities
contained in Sections 12.02 and 12.03 shall have been satisfied whenever with
respect to any Securities denominated in United States Dollars, the Company
52
<PAGE>
or the Guarantor shall have deposited or caused to be deposited irrevocably in
trust with the Trustee dedicated solely to the benefit of the Holders of such
Securities:
(a) Lawful money of the United States of America in an amount
equal to the principal amount of such Securities and all unpaid
interest thereon to maturity, except that, in the case of Securities
which are to be redeemed prior to maturity, the amount so to be
deposited or held shall be the principal amount of such Securities and
interest thereon to the Redemption Date, together with the redemption
premium, if any; or
(b) Direct obligations of the United States of America or
obligations the principal of and interest on which are guaranteed by
the United States of America (which obligations are not subject to
redemption prior to maturity at the option of the issuer), in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
The conditions for deposit of money or securities contained in Sections 12.02
and 12.03 shall have been satisfied whenever with respect to any Securities
denominated in one or more currencies or composite currency other than United
States Dollars, the Company or the Guarantor shall have deposited or caused to
be deposited irrevocably in trust with the Trustee dedicated solely to the
benefit of the Holders of such Securities:
(i) Lawful money in such currency, currencies or composite
currency in which such Securities are payable and in an amount equal to
the principal amount of such Securities and all unpaid interest thereon
to maturity, except that, in the case of Securities which are to be
redeemed prior to maturity, the amount so to be deposited or held shall
be the principal amount of such Securities and interest thereon to the
Redemption Date, together with the redemption premium, if any; or
(ii) Either (1) direct obligations of the government that
issued or caused to be issued the currency in which such Securities are
payable, for which obligations the full faith and credit of the
government is pledged (which obligations are not subject to redemption
prior to maturity at the option of the issuer) or (2) obligations of a
Person controlled or supervised by and acting as an agency or
instrumentality of such government the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by
such government (which obligations are not subject to redemption prior
to maturity at the option of the issuer), in either case, in such
amounts and maturing at such times that the proceeds of said
obligations to be received upon their respective maturities and
interest payment dates will provide funds sufficient to pay the
principal, premium, if any, and interest to maturity, or to the
Redemption Date, as the case may be, with respect to all of the
Securities to be paid or redeemed, as such principal, premium and
interest become due, provided that the Trustee shall have been
irrevocably instructed to apply the proceeds of said obligations to the
payment of said principal, premium, if any, and interest with respect
to said Securities.
Section 12.05. Unclaimed Moneys. Any moneys deposited with or paid to
the Trustee or any Paying Agent for the payment of the principal of and any
premium and interest on any Security and not so applied but remaining unclaimed
under applicable law shall be transferred by the Trustee to the appropriate
Persons in accordance with applicable laws, and the Holder of such Security
shall thereafter look only to such Persons for any payment which such Holder may
be entitled to collect and all liability of the Trustee and such Paying Agent
with respect to such moneys shall thereupon cease.
53
<PAGE>
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS
AND DIRECTORS
Section 13.01. Incorporators, Stockholders, Officers and Directors of
Company and Guarantor Exempt From Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Company or the Guarantor, either directly or
through the Company or the Guarantor, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers or directors, as such, of the Company or
the Guarantor because of the creation of the indebtedness hereby authorized, or
under or by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of such Securities.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
Section 14.01. Successors and Assigns of the Company or the Guarantor
Bound by Indenture. All the covenants, stipulations, promises and agreements in
this Indenture contained by or on behalf of the Company or the Guarantor shall
bind their successors and assigns, whether so expressed or not.
Section 14.02. Notices; Effectiveness. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders of Securities to or on the Company or the
Guarantor, or by the Company, the Guarantor or by the Holders of Securities to
the Trustee or upon the Depository by the Company or the Guarantor or the
Trustee may be electronically communicated or hand delivered or sent by
overnight courier, addressed to the relevant party as provided in this Section
14.02.
54
<PAGE>
All communications intended for the Company shall be sent to:
Chevron Canada Capital Company
6001 Bollinger Canyon Road
Building E
San Ramon, CA 94583
Attention: Treasurer
Fax Number: (925) 842-8090
Copies of all communications intended for the Company shall be sent to the
Guarantor.
All communications intended for the Guarantor shall be sent to:
Chevron Corporation
6001 Bollinger Canyon Road
Building E
San Ramon, CA 94583
Attention: Treasurer
Fax Number: (925) 842-8090
All communications intended for the Trustee shall be sent to:
--------------------
Attention:
Fax Number: ()
or at any other address of which any of the foregoing shall have notified the
others in any manner prescribed in this Section 14.02.
For all purposes of this Indenture, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the
day it is delivered unless (i) that day is not a Business Day in the
city specified (a "Local Business Day") in the address for notice
provided by the recipient or (ii) if delivered after the close of
business on a Local Business Day, then on the next succeeding Local
Business Day,
(b) if sent by telex, on the day the recipient's answerback is
received unless that day is not a Local Business Day, in which case on
the next succeeding Local Business Day,
(c) if sent by facsimile transmission, on the date
transmitted, provided that oral or written confirmation of receipt is
obtained by the sender unless the date of transmission and confirmation
is not a Local Business Day, in which case, on the next succeeding
Local Business Day.
Any notice, direction, request, demand, consent or waiver by the
Company, the Guarantor, any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given, made or filed, for all purposes, if
given, made or filed in writing with the Trustee in accordance with the
provisions of this Section 14.02.
55
<PAGE>
Any notice, request, consent or waiver by the Company, the Guarantor or
the Trustee upon the Depository shall have been sufficiently given, made or
filed, for all purposes, if given or made in accordance with the provisions of
this Section 14.02 at the address shown for such Depository in the Register or
at such other address as the Depository shall have provided for purposes of
notice.
Section 14.03. Compliance Certificates and Opinions. Upon any request
or application by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company or the Guarantor shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
document is specifically required by any provision of this Indenture relating to
such particular application or demand, no additional certificate or opinion need
be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than certificates provided pursuant to
Section 5.03(d) of this Indenture) shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based; (3) a statement that, in the opinion of such Person, he had made such
examination or investigation as is necessary to enable such Person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Company or
Guarantor may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any certificate, statement or opinion of counsel may be
based, insofar as it relates to factual matters, upon the certificate, statement
or opinion of or representations by an officer or officers of the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows
that the certificate, statement or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate, statement or opinion of an officer of the Company, the
Guarantor or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or
firm of accountants, unless such officer or counsel, as the case may be, knows
that the certificate or opinion or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based
as aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate or opinion of any firm of
independent public accountants filed with the Trustee shall contain a statement
that such firm is independent.
Section 14.04. Days on Which Payment to be Made, Notice Given or Other
Action Taken. If any date on which a payment is to be made, notice given or
other action taken hereunder is a Saturday, Sunday or legal holiday in the state
in which or from which the payment, notice or other action is to be made, given
or taken, then such payment, notice or other action shall be made, given or
taken on the next succeeding business day in such state, and in the case of any
payment, no interest shall accrue for the delay.
Section 14.05. Provisions Required by Trust Indenture Act of 1939 to
Control. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act of 1939, as amended, such required
provision shall control.
56
<PAGE>
Section 14.06. Governing Law. This Indenture and each Security shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of said State.
Section 14.07. Provisions of the Indenture and Securities for the Sole
Benefit of the Parties and the Securityholders. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to give any
Person, firm or corporation, other than the parties hereto and the Holders of
the Securities, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition and provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto and of the Holders of the Securities.
Section 14.08. Indenture May be Executed in Counterparts. This
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
____________________ hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, CHEVRON CANADA CAPITAL COMPANY and CHEVRON
CORPORATION and ____________________ have each caused this Indenture to be duly
executed, all as of the day and year first written above.
CHEVRON CANADA CAPITAL COMPANY
By ________________________________
CHEVRON CORPORATION
By ________________________________
____________________, as Trustee
By ________________________________
57
<PAGE>
Exhibit 4.6
$
CUSIP
CHEVRON CAPITAL CORPORATION
_.__% GUARANTEED [NOTE/DEBENTURE] DUE ____
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York Corporation ("DTC"), to Chevron Capital Corporation or
its agent for registration of transfer, exchange or payment and any Note 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.
CHEVRON CAPITAL CORPORATION (herein referred to as the "Company"), a
corporation duly organized and existing under the laws of the State of
Delaware, for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ______________ Million Dollars
($___,000,000) on ________, ____ in lawful money of the United States of America
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) thereon in like money from ________, 19__ or from the most recent
Interest Payment Date (hereinafter defined) to which interest has been paid or
duly provided for until payment of such principal sum, at the rate of _.__% per
annum, payable on each ___________ and ________, commencing ___________, 19__
(the "Interest Payment Dates").
The principal hereof is payable upon presentation and surrender of this
[Note/Debenture] at the principal office of The Chase Manhattan Bank,
as Trustee (herein called the "Trustee"), in New York, New York. Interest on
this [Note/Debenture] may be payable by check or draft mailed to the person in
whose name this [Note/Debenture] is registered at the close of business of the
Record Date for such interest payment at such person's address as it appears
on the registration books of the Trustee. The Record Date for the
[Note/Debenture]s is the date which is 15 days prior to the relevant Interest
Payment Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS [NOTE/DEBENTURE] SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF FULLY SET FORTH AT THIS PLACE.
This [Note/Debenture] shall not be entitled to any benefit under the
Indenture (hereinafter defined), or become valid or obligatory for any
purpose, until the Certificate of Authentication hereon endorsed shall have been
executed by manual signature by the Trustee.
IN WITNESS WHEREOF, CHEVRON CAPITAL CORPORATION has caused this
[Note/Debenture] to be signed by its President or Vice President manually
or in facsimile and its corporate seal to be imprinted hereon and attested by
the manual or facsimile signature of its Secretary or an Assistant Secretary.
CHEVRON CAPITAL CORPORATION
By:__________________________
Attest: _____________________________
Dated: _______ , 19__
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
<PAGE>
This is one of the Securities, of the Series designated
herein, described in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, as Trustee
By _______________________________________
Authorized Officer
<PAGE>
CHEVRON CAPITAL CORPORATION
_.__% GUARANTEED [NOTE/DEBENTURE] DUE ____
This [Note/Debenture] is one of a duly authorized issue of
securities of the Company, not limited in aggregate principal amount, all issued
or to be issued in one or more series of varying dates, numbers, interest rates
and other provisions, under an Indenture dated as of ______________, [as amended
by the First Supplemental Indenture dated as of _______ 1, 19__] (such indenture
[as so amended] being herein referred to as the "Indenture") each being among
the Company, as issuer, Chevron Corporation, as guarantor and the Trustee. This
[Note/Debenture] is one of a series of [Note/Debenture]s designated as its
"_.__% Guaranteed [Note/Debenture]s Due ____" aggregating $000,000,000 in
principal amount (herein called the "[Note/Debenture]s").
Reference is hereby made to the Indenture and all indentures
supplemental thereto [and to the resolution of the Board of Directors of the
Company establishing certain terms of the [Note/Debenture]s in accordance with
the provisions of the Indenture] for a description of the rights, obligations,
duties and immunities thereunder of the Company, the Trustee, Chevron
Corporation and the holders of the [Note/Debenture]s, to all of the provisions
of which Indenture and resolution the registered owner of this [Note/Debenture],
by acceptance hereof, assents and agrees. The Indenture contains provisions
permitting the Company, Chevron Corporation and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Securities (which term is defined in the Indenture as any security or securities
of the Company, authenticated and delivered under the Indenture) at the time
Outstanding (as defined in the Indenture) and affected by such supplemental
indenture, to execute one or more supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of such Securities; provided, however, that
no such supplemental indenture shall, without the consent of the holder of each
Outstanding Security (including the [Note/Debenture]s) affected thereby: (1)
change the fixed maturity or redemption date of any [Note/Debenture], or reduce
the rate of interest on any [Note/Debenture] or the method of determining such
rate of interest or extend the time of payment of interest, or reduce the
principal amount thereof, or reduce any premium payable on the redemption
thereof, or change the coin or currency in which the [Note/Debenture]s or the
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 deprive the
holder of any [Note/Debenture] of any of the benefits of the Guarantee, (2)
reduce the aforesaid percentage of holders of the Outstanding Securities whose
consent is required for the execution of such supplemental indenture, or the
consent of the holders of which is required for any waiver provided for in the
Indenture or (3) change the time of payment. It is also provided in the
Indenture that the holders of a majority in principal amount of the
[Note/Debenture]s may waive (a) compliance by Chevron Corporation with the
covenants contained in Article IV of the Indenture with respect to the
[Note/Debenture]s and (b) any past or existing Event of Default with respect to
the [Note/Debenture]s and its consequences except a continuing default in the
payment of the principal of or interest on the [Note/Debenture]s or in respect
of a covenant or provision of the Indenture which cannot be modified or amended
without the consent of the registered owner of the [Note/Debenture] so affected.
Under the terms of the Indenture, Chevron Corporation unconditionally
guarantees to the holders from time to time of the [Note/Debenture]s:
(a) the full and prompt payment of the principal of the [Note/Debenture]s
when and as the same shall become due and (b) the full and prompt payment of
the interest on the [Note/Debenture]s when the same shall become due.
No reference herein to the Indenture and no provisions of this
[Note/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 any
interest on this [Note/Debenture] at the place, at the respective times, at the
rate and in the currency herein prescribed, nor shall any such reference alter
or impair the obligation of Chevron Corporation to unconditionally guarantee to
the holders from time to time of the [Note/Debenture]s the payment of principal
of and interest on the [Note/Debenture]s.
<PAGE>
[The [Note/Debenture]s shall be subject to redemption at the option
of the Company as a whole or in part, on any date on or after ________,
____ at a redemption price of____________________________________________. As
provided in the Indenture, notice of redemption shall be given to the registered
owners of [Note/Debenture]s to be redeemed by mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption, to their addresses as they appear on the register books.]
If an Event of Default (as that term is defined in the Indenture)
shall occur, the principal of all [Note/Debenture]s and the interest
accrued thereon may be declared due and payable upon the conditions, in the
manner and with the effect provided in the Indenture. The Indenture provides
that in certain events such declaration and its consequences may be waived by
the holders of a majority in aggregate principal amount of the [Note/Debenture]s
then Outstanding.
The [Note/Debenture]s are issuable in registered form in denominations
of $1,000 and any integral multiple thereof. [Note/Debenture]s may be
exchanged for a like aggregate amount of [Note/Debenture]s of other
authorized denominations as provided in the Indenture. This [Note/Debenture] is
transferable at the office of the Trustee in New York, New York by the
registered owner hereof in person, or by such registered owner's attorney duly
authorized in writing, on the books of the Company at said office, but only in
the manner, subject to the limitations and upon payment of the charges provided
in the Indenture, and upon surrender and cancellation of this [Note/Debenture].
Upon such transfer a new fully registered [Note/Debenture] or [Note/Debenture]s
of authorized denomination or denominations, for the same aggregate principal
amount will be issued to the transferee in exchange herefor.
The Company, Chevron Corporation, the Trustee and any agent of the
Company or Chevron Corporation or the Trustee and any paying agent may treat
the registered owner hereof as the absolute owner of this [Note/Debenture]
(whether or not this [Note/Debenture] shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone other than the
Company or the Trustee) for the purpose of receiving payment hereof or on
account hereof and for all other purposes, and none of the Company, Chevron
Corporation, the Trustee or any such agent shall be affected by notice to the
contrary.
THIS [NOTE/DEBENTURE] AND THE OBLIGATIONS OF THE COMPANY AND CHEVRON
CORPORATION IN RESPECT HEREOF ARE GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
No recourse shall be had for the payment of the principal of or the
interest on this [Note/Debenture] or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of Chevron
Corporation or of any successor of either, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
<PAGE>
---------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT--__________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
---------------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
+-------------------------------------------------+
| | |
+-------------------------------------------------+
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
------------------------------------------
the within [Note/Debenture] and all rights thereunder, hereby irrevocably
constituting and appointing ___________________________________
attorney to transfer said [Note/Debenture] on the books of the Company,
with full power of substitution in the premises.
Dated: ______________________
_________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
Exhibit 4.7
$
CUSIP
CHEVRON CANADA CAPITAL COMPANY
_.__% GUARANTEED [NOTE/DEBENTURE] DUE ____
Unless this Note is presented by an authorized representative of The Depository
Trust Company, a New York Corporation ("DTC"), to Chevron Canada Capital Company
or its agent for registration of transfer, exchange or payment and any Note
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.
CHEVRON CANADA CAPITAL COMPANY (herein referred to as the "Company"),
a corporation duly organized and existing under the laws of Nova
Scotia, Canada, for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of ______________ Million Dollars
($___,000,000) on ________, ____ in lawful money of the United States of America
and to pay interest (computed on the basis of a 360-day year of twelve 30-day
months) thereon in like money from ________, 19__ or from the most recent
Interest Payment Date (hereinafter defined) to which interest has been paid or
duly provided for until payment of such principal sum, at the rate of _.__% per
annum, payable on each ___________ and ________, commencing ___________, 19__
(the "Interest Payment Dates").
The principal hereof is payable upon presentation and surrender of this
[Note/Debenture] at the principal office of ______________________, as
Trustee (herein called the "Trustee"), in New York, New York. Interest on
this [Note/Debenture] may be payable by check or draft mailed to the person
in whose name this [Note/Debenture] is registered at the close of business
of the Record Date for such interest payment at such person's address as
it appears on the registration books of the Trustee. The Record Date
for the [Note/Debenture]s is the date which is 15 days prior to the relevant
Interest Payment Date.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS [NOTE/DEBENTURE] SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF FULLY SET FORTH AT THIS PLACE.
This [Note/Debenture] shall not be entitled to any benefit under the
Indenture (hereinafter defined), or become valid or obligatory for any
purpose, until the Certificate of Authentication hereon endorsed shall have been
executed by manual signature by the Trustee.
IN WITNESS WHEREOF, CHEVRON CANADA CAPITAL COMPANY has caused this
[Note/Debenture] to be signed by its President or Vice President manually
or in facsimile and its corporate seal to be imprinted hereon and attested by
the manual or facsimile signature of its Secretary or an Assistant Secretary.
CHEVRON CANADA CAPITAL COMPANY
By: ______________________________
Attest: _____________________
Dated: _______ , 19__
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
<PAGE>
This is one of the Securities, of the Series designated
herein, described in the within-mentioned Indenture.
__________________________, as Trustee
By _______________________________
Authorized Officer
<PAGE>
CHEVRON CANADA CAPITAL COMPANY
_.__% GUARANTEED [NOTE/DEBENTURE] DUE ____
This [Note/Debenture] is one of a duly authorized issue of securities
of the Company, not limited in aggregate principal amount, all issued
or to be issued in one or more series of varying dates, numbers, interest rates
and other provisions, under an Indenture dated as of ______________, [as amended
by the First Supplemental Indenture dated as of _______ 1, 19__] (such indenture
[as so amended] being herein referred to as the "Indenture") each being among
the Company, as issuer, Chevron Corporation, as guarantor and the Trustee. This
[Note/Debenture] is one of a series of [Note/Debenture]s designated as its
"_.__% Guaranteed [Note/Debenture]s Due ____" aggregating $000,000,000 in
principal amount (herein called the "[Note/Debenture]s").
Reference is hereby made to the Indenture and all indentures
supplemental thereto [and to the resolution of the Board of Directors of the
Company establishing certain terms of the [Note/Debenture]s in accordance with
the provisions of the Indenture] for a description of the rights, obligations,
duties and immunities thereunder of the Company, the Trustee, Chevron
Corporation and the holders of the [Note/Debenture]s, to all of the provisions
of which Indenture and resolution the registered owner of this [Note/Debenture],
by acceptance hereof, assents and agrees. The Indenture contains provisions
permitting the Company, Chevron Corporation and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the
Securities (which term is defined in the Indenture as any security or securities
of the Company, authenticated and delivered under the Indenture) at the time
Outstanding (as defined in the Indenture) and affected by such supplemental
indenture, to execute one or more supplemental indentures for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or of modifying in
any manner the rights of the holders of such Securities; provided, however, that
no such supplemental indenture shall, without the consent of the holder of each
Outstanding Security (including the [Note/Debenture]s) affected thereby: (1)
change the fixed maturity or redemption date of any [Note/Debenture], or reduce
the rate of interest on any [Note/Debenture] or the method of determining such
rate of interest or extend the time of payment of interest, or reduce the
principal amount thereof, or reduce any premium payable on the redemption
thereof, or change the coin or currency in which the [Note/Debenture]s or the
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 deprive the
holder of any [Note/Debenture] of any of the benefits of the Guarantee, (2)
reduce the aforesaid percentage of holders of the Outstanding Securities whose
consent is required for the execution of such supplemental indenture, or the
consent of the holders of which is required for any waiver provided for in the
Indenture or (3) change the time of payment. It is also provided in the
Indenture that the holders of a majority in principal amount of the
[Note/Debenture]s may waive (a) compliance by Chevron Corporation with the
covenants contained in Article IV of the Indenture with respect to the
[Note/Debenture]s and (b) any past or existing Event of Default with respect to
the [Note/Debenture]s and its consequences except a continuing default in the
payment of the principal of or interest on the [Note/Debenture]s or in respect
of a covenant or provision of the Indenture which cannot be modified or amended
without the consent of the registered owner of the [Note/Debenture] so affected.
Under the terms of the Indenture, Chevron Corporation unconditionally
guarantees to the holders from time to time of the [Note/Debenture]s:
(a) the full and prompt payment of the principal of the [Note/Debenture]s
when and as the same shall become due and (b) the full and prompt payment
of the interest on the [Note/Debenture]s when the same shall become due.
No reference herein to the Indenture and no provisions of this
[Note/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 any
interest on this [Note/Debenture] at the place, at the respective times, at the
rate and in the currency herein prescribed, nor shall any such reference alter
or impair the obligation of Chevron Corporation to unconditionally guarantee to
the holders from time to time of the [Note/Debenture]s the payment of principal
of and interest on the [Note/Debenture]s.
<PAGE>
[The [Note/Debenture]s shall be subject to redemption at the
option of the Company as a whole or in part, on any date on or after ________,
____ at a redemption price of____________________________________________. As
provided in the Indenture, notice of redemption shall be given to the registered
owners of [Note/Debenture]s to be redeemed by mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption, to their addresses as they appear on the register books.]
If an Event of Default (as that term is defined in the Indenture)
shall occur, the principal of all [Note/Debenture]s and the interest
accrued thereon may be declared due and payable upon the conditions, in the
manner and with the effect provided in the Indenture. The Indenture provides
that in certain events such declaration and its consequences may be waived by
the holders of a majority in aggregate principal amount of the [Note/Debenture]s
then Outstanding.
The [Note/Debenture]s are issuable in registered form in denominations
of $1,000 and any integral multiple thereof. [Note/Debenture]s may
be exchanged for a like aggregate amount of [Note/Debenture]s of other
authorized denominations as provided in the Indenture. This [Note/Debenture] is
transferable at the office of the Trustee in New York, New York by the
registered owner hereof in person, or by such registered owner's attorney duly
authorized in writing, on the books of the Company at said office, but only in
the manner, subject to the limitations and upon payment of the charges provided
in the Indenture, and upon surrender and cancellation of this [Note/Debenture].
Upon such transfer a new fully registered [Note/Debenture] or [Note/Debenture]s
of authorized denomination or denominations, for the same aggregate principal
amount will be issued to the transferee in exchange herefor.
The Company, Chevron Corporation, the Trustee and any agent of the
Company or Chevron Corporation or the Trustee and any paying agent may treat
the registered owner hereof as the absolute owner of this [Note/Debenture]
(whether or not this [Note/Debenture] shall be overdue and notwithstanding any
notation of ownership or other writing hereon made by anyone other than the
Company or the Trustee) for the purpose of receiving payment hereof or on
account hereof and for all other purposes, and none of the Company, Chevron
Corporation, the Trustee or any such agent shall be affected by notice to the
contrary.
THIS [NOTE/DEBENTURE] AND THE OBLIGATIONS OF THE COMPANY AND CHEVRON
CORPORATION IN RESPECT HEREOF ARE GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
No recourse shall be had for the payment of the principal of
or the interest on this [Note/Debenture] or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Company or of Chevron
Corporation or of any successor of either, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as
part of the consideration for the issue hereof, expressly waived and released.
<PAGE>
---------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
JT TEN --as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT--__________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------------------
FOR VALUE RECEIVED the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
+-------------------------------------------------+
| | |
+-------------------------------------------------+
- --------------------------------------------------------------------------------
Please print or typewrite name and address including postal zip code of assignee
- --------------------------------------------------------------------------------
_______________________
the within [Note/Debenture] and all rights thereunder, hereby irrevocably
constituting and appointing ________________________________
attorney to transfer said [Note/Debenture] on the books of the Company,
with full power of substitution in the premises.
Dated: ______________________
_________________________
NOTICE: The signature to this assignment must correspond with the name
as written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatever.
<PAGE>
Exhibit 5.1
PILLSBURY MADISON & SUTRO LLP
Attorneys at Law
235 Montgomery Street
San Francisco, California 94104
Mailing Address: P. O. Box 7880
San Francisco, CA 94120-7880
TELEPHONE: (415) 983-1000 FAX: (415) 983-1200
Internet: pillsburylaw.com
November 15, 1999
Chevron Corporation
575 Market Street
San Francisco, CA 94104
Ladies and Gentlemen:
We are acting as counsel for Chevron Corporation ("Chevron"), which,
together with Chevron Capital Corporation ("Chevron Capital") and Chevron Canada
Capital Company ("Chevron Canada Capital"), each a wholly-owned subsidiary of
Chevron, is filing this date with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, a registration statement (the
"Registration Statement") relating to the proposed sale from time to time by
Chevron, Chevron Capital or Chevron Canada Capital, of up to $2,000,000,000 in
aggregate principal amount of debt securities (the "Debt Securities"). Each
series of Debt Securities will be issued under one of the following indentures:
(a) an Indenture dated as of June 15, 1995, as supplemented by the First
Supplemental Indenture dated October 13, 1999, each being between Chevron and
The Chase Manhattan Bank, as trustee; (b) an Indenture, substantially in the
form attached to the Registration Statement as Exhibit 4.3, to be entered into
among Chevron, as guarantor; Chevron Capital, as issuer; and The Chase Manhattan
Bank, as trustee (the "Chevron Capital Indenture") or (c) an Indenture,
substantially in the form attached to the Registration Statement as Exhibit 4.4,
to be entered into among Chevron, as guarantor, Chevron Canada Capital, as
issuer; and a trustee to be named (the "Chevron Canada Capital Indenture"). Any
debt securities issued under the Chevron Capital Indenture or the Chevron Canada
Capital Indenture will be unconditionally guaranteed by Chevron.
Please be advised that, in our opinion, the Debt Securities, when duly
authorized and executed by Chevron, Chevron and Chevron Capital, or Chevron and
Chevron Canada Capital, as the case may be, and authenticated by the applicable
trustee, all in accordance with the applicable Indenture, and when delivered to
and paid for by the purchasers thereof, will be legally issued and binding
obligations of Chevron, Chevron and Chevron Capital, or Chevron and Chevron
Canada Capital, as the case may be.
<PAGE>
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the filing of the Registration Statement
referred to above. We also consent to the use of our name in the related
prospectus under the heading "Legal Opinions."
Very truly yours,
/s/ Pillsbury Madison & Sutro LLP
[E-05767]
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 4, 1999 relating to the
consolidated financial statements, which appears in Chevron Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Francisco, California
November 15, 1999
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Chevron
Corporation, Chevron Capital Corporation and Chevron Canada Capital Company of
our report dated February 8, 1999 relating to the combined balance sheets of the
Caltex Group of Companies as of December 31, 1998 and 1997 and the related
combined statements of income, comprehensive income, stockholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
1998, which report appears on page C-9 of Chevron Corporation's Annual Report on
Form 10-K for the year ended December 31, 1998. We also consent to the reference
to our firm under the heading "Experts" in the Prospectus.
/s/ KPMG LLP
KPMG LLP
Dallas, Texas
November 15, 1999
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ Samuel H. Armacost
--------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ K. T. Derr
---------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ Sam Ginn
------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ Carla A. Hills
----------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ J. Bennett Johnston
---------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ R. H. Matzke
--------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ David J. O'Reilly
-------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ C. M. Pigott
------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ Condoleezza Rice
-------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ F. A. Shrontz
----------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ James N. Sullivan
-------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ Chang-Lin Tien
-----------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ John A. Young
----------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ S. J. Crowe
-------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 27th day of October, 1999.
---- -------
/s/ M. R. Klitten
---------------------------
<PAGE>
Exhibit 24.2
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Capital Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
3Rd day of November, 1999.
- --- -----------
/s/ J. A. Aleveras
------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Capital Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
3rd day of November, 1999.
- --- -----------
/s/ G. K. Carter
----------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Capital Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
3rd day of November, 1999.
- --- -----------
/s/ M. R. Klitten
---------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Capital Corporation, a Delaware corporation (the
"Corporation"), contemplates filing with the Securities and Exchange Commission
at Washington, D.C., under the provisions of the Securities Act of 1933, as
amended, and the regulations promulgated thereunder, a Registration Statement on
Form S-3 (and amendments thereto, including post-effective amendments).
---
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand this
3rd day of November, 1999.
- --- -----------
/s/ H. B. Sheppard
-------------------------------
<PAGE>
Exhibit 24.3
POWER OF ATTORNEY
----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 10th day of November, 1999.
/s/ G. K. Carter
-------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 15th day of November, 1999.
/s/ S. W. Kinsey
---------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 15th day of November, 1999.
/s/ J. M. Owen
---------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 15th day of November, 1999.
/s/ R. A. Pashelka
----------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 15th day of November, 1999.
/s/ J. W. Simpson
----------------------------------
<PAGE>
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, Chevron Canada Capital Company, an unlimited liability company
organized under the laws of Nova Scotia, Canada (the "Corporation"),
contemplates filing with the Securities and Exchange Commission at Washington,
D.C., under the provisions of the Securities Act of 1933, as amended, and the
regulations promulgated thereunder, a Registration Statement on Form S-3 (and
amendments thereto, including post-effective amendments).
WHEREAS, the undersigned is an officer or director, or both, of the
Corporation.
N O W, T H E R E F O R E, the undersigned hereby constitutes and
appoints LYDIA I. BEEBE, HILMAN P. WALKER, TERRY MICHAEL KEE and KEITH J.
----- -- ----- ------ -- ------ ----- ------- --- ----- --
MENDELSON, or any of them, his or her attorneys-in-fact and agents, with full
- ---------
power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all capacities, to sign the aforementioned
Registration Statement (and any and all amendments thereto, including
post-effective amendments) and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as to all intents and purposes he
or she might or could do in person, hereby ratifying and confirming all that
said attorneys-in-fact and agents, or their substitutes, may lawfully do and
cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand
this 10th day of November, 1999.
/s/ J. A. Aleveras
------------------------------
<PAGE>
___________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
CHEVRON CAPITAL CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 94-3343413
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
575 MARKET STREET
SAN FRANCISCO, CALIFORNIA 94105-2856
(Address of principal executive offices) (Zip Code)
--------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
___________________________________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany,
New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 4 Trusteeships under Other Indenture.
(a) Title of securities outstanding under each such other indenture.
$350,000,000.00 7.45% Guaranteed Notes due 8/15/2004 issued under
Indenture dated as of May 15, 1987.
- 2 -
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 333-76439, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or examining
authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 5th day of November, 1999.
THE CHASE MANHATTAN BANK
By /s/ Ronald J. Halleran
-----------------------------------
/s/ Ronald J. Halleran
Assistant Vice President
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1999, in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Millions
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin .................................. $ 13,119
Interest-bearing balances .......................... 6,761
Securities: ............................................
Held to maturity securities.............................. 892
Available for sale securities............................ 42,965
Federal funds sold and securities purchased under
agreements to resell ............................... 32,277
Loans and lease financing receivables:
Loans and leases, net of unearned income $130,602
Less: Allowance for loan and lease losses 2,551
Less: Allocated transfer risk reserve..... 0
--------
Loans and leases, net of unearned income,
allowance, and reserve ............................. 128,051
Trading Assets .......................................... 41,426
Premises and fixed assets (including capitalized
leases)............................................. 3,190
Other real estate owned ................................. 28
Investments in unconsolidated subsidiaries and
associated companies................................ 182
Customers' liability to this bank on acceptances
outstanding ........................................ 901
Intangible assets ....................................... 2,010
Other assets ............................................ 14,567
------
TOTAL ASSETS ............................................ $286,369 =========
- 1-
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................ $101,979
Noninterest-bearing ....................$42,241
Interest-bearing ........................59,738
------
In foreign offices, Edge and Agreement
subsidiaries and IBF's ............................. 76,395
Noninterest-bearing ....................$ 4,645
Interest-bearing ....................... 71,750
Federal funds purchased and securities sold under agree-
ments to repurchase ..................................... 36,604
Demand notes issued to the U.S. Treasury ................ 1,001
Trading liabilities ..................................... 30,287
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less 3,606
With a remaining maturity of more than one year
through three years................................. 14
With a remaining maturity of more than three years.. 91
Bank's liability on acceptances executed and outstanding 901
Subordinated notes and debentures ....................... 5,427
Other liabilities ....................................... 11,247
TOTAL LIABILITIES ....................................... 267,552
-------
EQUITY CAPITAL
Perpetual preferred stock and related surplus 0
Common stock ............................................ 1,211
Surplus (exclude all surplus related to preferred stock)...... 11,016
Undivided profits and capital reserves ....................... 7,317
Net unrealized holding gains (losses)
on available-for-sale securities ............................. (743)
Accumulated net gains (losses) on cash flow hedges............ 0
Cumulative foreign currency translation adjustments .......... 16
TOTAL EQUITY CAPITAL ......................................... 18,817
-------
TOTAL LIABILITIES AND EQUITY CAPITAL ......................... $286,369
==========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness
of this Report of Condition and declare that it has been
examined by us, and to the best of our knowledge and
belief has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
WILLIAM B. HARRISON, JR. ) DIRECTORS
FRANK A. BENNACK, JR. )
-2-
