SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) April 13, 1999
UNION PACIFIC RESOURCES GROUP INC.
(Exact name of registrant as specified in charter)
Utah 1-13916 13-2647483
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
777 Main Street, Fort Worth, Texas 76102
---------------------------------- -----
(Address of principal executive offices) (Zip Code)
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Registrant's telephone number including area code 817-321-6000
(Former name or former address, if changed since last report)
Not applicable
Item 5. Other Events.
On April 13, 1999, Union Pacific Resources Group Inc. (the "Company") and its subsidiaries, Union Pacific Resources Inc. and UPR Capital Company, entered into an Indenture with The Bank of New York in connection with the issuance of the following debt securities: $200,000,000 7.30% Notes due April 15, 2009 and $300,000,000 7.95% Debentures due April 15, 2029. A copy of the Indenture is attached as Exhibit 4.1 to this Current Report on Form 8-K.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
Exhibits not incorporated herein by reference to a prior filing are designated by an asterisk (*) and are filed herewith.
*4.1 Indenture, dated as of April 13, 1999, between Union Pacific Resources Group Inc., Union Pacific Resources Inc., UPR Capital Company and The Bank of New York as trustee.
*4.2 Form of 7.30% Note due April 15, 2009.
*4.3 Form of 7.95% Debenture due April 15, 2029 ($200 million)
*4.4 Form of 7.95% Debenture due April 15, 2029 ($100 million)
*25.1 Statement on Form T-1 of the eligibility of The Bank of New York, as trustee under the Indenture.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
UNION PACIFIC RESOURCES GROUP INC.
/s/ Joseph A. LaSala, Jr.
-------------------------------------------
By: Joseph A. LaSala, Jr.
Vice President, General Counsel and
Secretary
DATED: April 14, 1999
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EXHIBIT INDEX
*4.1 Indenture, dated as of April 13, 1999, between Union Pacific Resources Group Inc., Union Pacific Resources Inc., UPR Capital Company and The Bank of New York as trustee.
*4.2 Form of 7.30% Note due April 15, 2009.
*4.3 Form of 7.95% Debenture due April 15, 2029 ($200 million).
*4.4 Form of 7.95% Debenture due April 15, 2029 ($100 million).
*25.1 Statement on Form T-1 of the eligibility of The Bank of New York, as trustee under the Indenture.
* Filed herewith
INDENTURE
among
UNION PACIFIC RESOURCES GROUP INC.,
UNION PACIFIC RESOURCES INC.,
UPR CAPITAL COMPANY
and
THE BANK OF NEW YORK,
Trustee
Dated as of April 13, 1999
TABLE OF CONTENTS
Page
Recitals of the Company.............................................................. 1
Agreements of the Parties............................................................ 1
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 101. Definitions........................................................ 1
SECTION 102. Compliance Certificates and
Opinions........................................................ 7
SECTION 103. Form of Documents Delivered to
Trustee......................................................... 8
SECTION 104. Acts of Securityholders............................................ 8
SECTION 105. Notices, etc., to Trustee and
Company......................................................... 9
SECTION 106. Notices to Securityholders; Waiver................................. 9
SECTION 107. Conflict with Trust Indenture Act.................................. 9
SECTION 108. Effect of Headings and Table of Contents........................... 10
SECTION 109. Successors and Assigns............................................. 10
SECTION 110. Separability Clause................................................ 10
SECTION 111. Benefits of Indenture.............................................. 10
SECTION 112. Governing Law...................................................... 10
SECTION 113. Counterparts....................................................... 10
SECTION 114. Judgment Currency.................................................. 10
ARTICLE II
Security Forms
SECTION 201. Forms Generally.................................................... 10
SECTION 202. Forms of Securities................................................ 11
SECTION 203. Form of Trustee's Certificate of Authentication.................... 11
SECTION 204. Securities Issuable in the Form of a Global Security............... 12
SECTION 205. Form of Notation of Guarantees..................................... 13
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ARTICLE III
The Securities
SECTION 301. General Title; General Limitations; Issuable in Series;
Terms of Particular Series...................................... 13
SECTION 302. Denominations...................................................... 15
SECTION 303. Execution, Authentication and
Delivery and Dating............................................. 15
SECTION 304. Temporary Securities............................................... 17
SECTION 305. Registration, Transfer and Exchange................................ 17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities................... 18
SECTION 307. Payment of Interest; Interest Rights Preserved..................... 18
SECTION 308. Persons Deemed Owners.............................................. 19
SECTION 309. Cancelation........................................................ 20
SECTION 310. Computation of Interest............................................ 20
SECTION 311. Medium-term Securities............................................. 20
ARTICLE IV
Satisfaction and Discharge
SECTION 401. Satisfaction and Discharge of Indenture............................ 20
SECTION 402. Application of Trust Money......................................... 21
SECTION 403. Satisfaction, Discharge and Defeasance of Securities of
any Series...................................................... 22
ARTICLE V
Remedies
SECTION 501. Events of Default.................................................. 24
SECTION 502. Acceleration of Maturity; Rescission and Annulment................. 25
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee.......................................... 26
SECTION 504. Trustee May File Proofs of Claim................................... 26
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities................................................... 27
SECTION 506. Application of Money Collected..................................... 27
SECTION 507. Limitation on Suits................................................ 27
SECTION 508. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest................................. 28
SECTION 509. Restoration of Rights and Remedies................................. 28
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Page
SECTION 510. Rights and Remedies Cumulative..................................... 28
SECTION 511. Delay or Omission Not Waiver....................................... 28
SECTION 512. Control by Securityholders......................................... 28
SECTION 513. Waiver of Past Defaults............................................ 29
SECTION 514. Undertaking for Costs.............................................. 29
SECTION 515. Waiver of Stay or Extension Laws................................... 29
ARTICLE VI
The Trustee
SECTION 601. Certain Duties and Responsibilities................................ 29
SECTION 602. Notice of Defaults................................................. 30
SECTION 603. Certain Rights of Trustee.......................................... 31
SECTION 604. Not Responsible for Recitals or Issuance of Securities............. 31
SECTION 605. May Hold Securities................................................ 31
SECTION 606. Money Held in Trust................................................ 31
SECTION 607. Compensation and Reimbursement..................................... 32
SECTION 608. Disqualification; Conflicting Interests............................ 32
SECTION 609. Corporate Trustee Required; Eligibility............................ 32
SECTION 610. Resignation and Removal; Appointment of Successor.................. 32
SECTION 611. Acceptance of Appointment by Successor............................. 34
SECTION 612. Merger, Conversion, Consolidation or Succession
to Business..................................................... 34
SECTION 613. Preferential Collection of Claims Against Company.................. 34
SECTION 614. Appointment of Authenticating Agent................................ 37
ARTICLE VII
Securityholders' Lists and Reports
by Trustee, the Issuer and the Guarantor
SECTION 701. The Issuers and the Guarantor To Furnish Trustee
Names and Addresses of Securityholders.......................... 39
SECTION 702. Preservation of Information; Communications to
Securityholders................................................. 39
SECTION 703. Reports by Trustee................................................. 40
SECTION 704. Reports by the Issuers and the Guarantor........................... 41
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ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
SECTION 801. Company May Consolidate, etc. only on Certain Terms................ 41
SECTION 802. Subsidiary Issuers May Consolidate, etc. only on Certain
Terms........................................................... 42
SECTION 803. Successor Corporation Substituted.................................. 42
ARTICLE IX
Supplemental Indentures
SECTION 901. Supplemental Indentures Without Consent of
Securityholders................................................. 42
SECTION 902. Supplemental Indentures with Consent of
Securityholders................................................. 43
SECTION 903. Execution of Supplemental Indentures............................... 44
SECTION 904. Effect of Supplemental Indentures.................................. 44
SECTION 905. Conformity with Trust Indenture Act................................ 44
SECTION 906. Reference in Securities to Supplemental Indentures................. 44
ARTICLE X
Covenants
SECTION 1001. Payment of Principal, Premium and Interest......................... 45
SECTION 1002. Maintenance of Office or Agency.................................... 45
SECTION 1003. Money for Security Payments to be Held in Trust.................... 45
SECTION 1004. Statement as to Compliance......................................... 46
SECTION 1005. Corporate Existence................................................ 47
SECTION 1006. Limitation on Liens and Sale Leaseback Transactions................ 47
SECTION 1007. Limitation on Transfers of Principal Properties to
Unresricted Subsidiaries......................................... 48
SECTION 1008. Waiver of Certain Covenants........................................ 48
ARTICLE XI
Redemption of Securities
SECTION 1101. Applicability of Article........................................... 49
SECTION 1102. Election to Redeem; Notice to Trustee.............................. 49
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Page
SECTION 1103. Selection by Trustee of Securities to be Redeemed.................. 49
SECTION 1104. Notice of Redemption............................................... 50
SECTION 1105. Deposit of Redemption Price........................................ 50
SECTION 1106. Securities Payable on Redemption Date.............................. 50
SECTION 1107. Securities Redeemed in Part........................................ 50
SECTION 1108. Provisions with Respect to any Sinking Funds....................... 51
ARTICLE XII
Guarantees of Securities of Subsidiary Issuers
SECTION 1201. Guarantees......................................................... 52
SECTION 1202. Execution of Guarantees............................................ 53
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THIS INDENTURE among UNION PACIFIC RESOURCES
GROUP INC., a Utah corporation (hereinafter called
the "Company" and in its capacity as the guarantor
with respect to the Securities (as hereinafter
defined) issued by any of the Subsidiary Issuers (as
hereinafter defined), the "Guarantor") having its
principal office at 777 Main Street, Fort Worth,
Texas 76102, UNION PACIFIC RESOURCES INC., an Alberta
corporation ("UPRI"), having its principal executive
office at 400, 425 First Street, S.W., Calgary,
Alberta, Canada T2P 4V4, UPR CAPITAL COMPANY, a Nova
Scotia unlimited liability company ("UPR Capital"
and, together with UPRI, the "Subsidiary Issuers")
and THE BANK OF NEW YORK, a New York banking
association, trustee (hereinafter called the
"Trustee"), is made and entered into as of this 13th
day of April 1999. The Company and the Subsidiary
Issuers, each in its capacity as an Issuer of
Securities is herein referred to as an "Issuer".
Recitals of the Company
Each of the Issuers and the Guarantor has duly authorized the execution
and delivery of this Indenture to provide for the issuance of debentures, notes,
bonds or other evidences of indebtedness, to be issued in one or more fully
registered series.
All things necessary to make this Indenture a valid agreement of each
of the Issuers and the Guarantor, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture and of
any indenture supplemental hereto, except as otherwise expressly provided or
unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any
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computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at the
date of such computation,
(4) all references in this instrument to designated "Articles",
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this instrument as originally executed. The words
"herein", "hereof' and "hereunder" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision; and
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation".
(6) all references to the "applicable Issuer" are to the Issuer of the
Securities being described;
(7) all references to the "Guarantee" and the "Guarantor" are operative
only where a Subsidiary Issuer is, was or may become the Issuer of the
relevant series of Securities, and only with respect to such series of
Securities.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Securityholder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" when used with reference to any of the Issuers or
the Guarantor means either the board of directors of such Issuer or the
Guarantor, as the case may be, or any duly authorized committee of that board.
"Board Resolution" when used with reference to any of the Issuers or
the Guarantor means a copy of a resolution certified by the Secretary or an
Assistant Secretary of such Issuer or the Guarantor, as the case may be, to have
been duly adopted by the Board of Directors of such Issuer or the Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or
other day on which banking institutions in the pertinent Place or Places of
Payment are authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to under the Trust Indenture
Act, then the body performing such duties on such date.
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"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" when used with
reference to any of the Issuers or the Guarantor shall mean, respectively, a
written request, order or consent signed in the name of such Issuer or the
Guarantor, as the case may be, by its Chairman of the Board, President or a Vice
President, and by its Treasurer, an Assistant Treasurer, Controller, an
Assistant Controller, Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
101 Barclay Street, Floor 21 West, New York, New York, 10286, attention:
Corporate Trust Administration.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 204 or 301, with respect to Securities of any series issuable
or issued as a Global Security, The Depository Trust Company, New York, New
York, or any successor thereto registered as a clearing agency under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
"Domestic Subsidiary" means a Subsidiary of the Company which is
incorporated or conducting its principal operations within the United States of
America or any State thereof or off the coast of the United States of America
but within an area over which the United States of America or any State thereof
has jurisdiction.
"Event of Default" has the meaning specified in Article Five.
"Funded Debt" of any Person means all indebtedness for borrowed money
created, incurred, assumed or guaranteed in any manner by such Person, and all
indebtedness, contingent or otherwise incurred or assumed by such Person in
connection with the acquisition of any business, property or asset, which in
each case matures more than one year after, or which by its terms is renewable
or extendible or payable out of the proceeds of similar indebtedness incurred
pursuant to the terms of any revolving credit agreement or any similar agreement
at the option of such Person for a period ending more than one year after the
date as of which Funded Debt is being determined; provided, however, that Funded
Debt shall not include (i) any indebtedness for the payment, redemption or
satisfaction of which money (or evidences or indebtedness, if permitted under
the instrument creating or evidencing such indebtedness) in the necessary amount
shall have been irrevocably deposited in trust with a trustee or proper
depository either on or before the maturity or redemption date thereof or (ii)
any indebtedness of such Person to any of its Subsidiaries or of any Subsidiary
to such Person or any other Subsidiary or (iii) any indebtedness incurred in
connection with the financing of operating, construction or acquisition
projects, provided that the recourse for such indebtedness is limited to the
assets of such projects.
"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the applicable Issuer and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, and which the Guarantor executed, as applicable, the
notation of any Guarantee pursuant to Article Twelve all in accordance with this
Indenture and an indenture supplemental hereto, if any, or Board Resolution and
pursuant to a Company Request, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of,
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all of the Outstanding Securities of such series or any portion thereof, in
either case having the same terms including, without limitation, the same
original issue date, date or dates on which principal is due, and interest rate
or method of determining interest.
"Guarantee" means the irrevocable and unconditional guarantee by the
Guarantor of any Security of any series of any Subsidiary Issuer authenticated
and delivered (i) as contemplated by Section 301 and endorsed on such Security,
if specified in a Board Resolution of the Guarantor, or (ii) otherwise pursuant
to Article Twelve.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until any successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean any such successor Person.
"Holder", when used with respect to any Security, means a Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Independent", when used with respect to any specified Person, means
such a Person who (i) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the applicable
Issuer or the Guarantor or in any other obligor upon the Securities or in any
Affiliate of the applicable Issuer or the Guarantor or of such other obligor,
and (3) is not connected with the applicable Issuer or the Guarantor or such
other obligor or any Affiliate of the applicable Issuer or the Guarantor or of
such other obligor, as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall be furnished
to the Trustee, such Person shall be appointed by a Company Order and approved
by the Trustee, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Issuer" means (i) any of the Persons named as an "Issuer" in the first
paragraph of this instrument until any successor Person shall have become such
pursuant to the applicable provisions of this Indenture in respect of any such
Person, and thereafter "Issuer", in respect of such Person shall mean any such
successor Person, and (ii) when used with respect to Securities, shall mean the
Issuer of Securities of the relevant series.
"Maturity", when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity, or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an
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Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Wherever this Indenture requires that an Officers'
Certificate be signed also by an engineer or an accountant or other expert, such
engineer, accountant or other expert (except as otherwise expressly provided in
this Indenture) may be in the employ of the applicable Issuer or the Guarantor,
and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
(except as otherwise expressly provided in this Indenture) be an employee of or
of counsel to the applicable Issuer or the Guarantor. Such counsel shall be
acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof, and (ii) any
other Security deemed an Original Issue Discount Security for United States
Federal income tax purposes.
"Outstanding", when used with respect to Securities or Securities of
any series, means, as of the date of determination, all such Securities
theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancelation,
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent 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 pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture,
or which shall have been paid pursuant to the terms of Section 306 (except
with respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a person in whose hands
such Security is a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of any Original
Issue Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of the date of
the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the applicable Issuer, the Guarantor or any
other obligor upon the Securities or any Affiliate of the applicable Issuer, the
Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding. In determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which a Responsible Officer assigned to the corporate
trust department of the Trustee knows to be owned by the applicable Issuer, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
applicable Issuer, the Guarantor or such other obligor shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right to act as owner with respect to such Securities and that the
pledgee is not the applicable Issuer, the Guarantor or any other obligor upon
the Securities or any Affiliate of the applicable Issuer, the Guarantor or such
other obligor.
"Paying Agent" means any Person authorized by any Issuer to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
such Issuer.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any series of Securities
issued hereunder the city or political subdivision so designated with respect to
the series of Securities in question in accordance with the provisions of
Section 301.
"Predecessor Securities" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Principal Property" means (i) any property owned or leased by the
applicable Issuer, the Guarantor or any Subsidiary of the applicable Issuer or
the Guarantor, or any interest of the applicable Issuer, the Guarantor or any
Subsidiary of the applicable Issuer or the Guarantor in property, located within
the United States of America or any State thereof (including property located
off the coast of the United States of America held pursuant to lease from any
Federal, State or other governmental body) which is considered by the applicable
Issuer or the Guarantor to be capable of producing oil or gas or minerals in
commercial quantities and (ii) any refinery, smelter or processing or
manufacturing plant owned or leased by the applicable Issuer, the Guarantor or
any Subsidiary of the applicable Issuer or the Guarantor and located within the
United States of America or any State thereof, except (a) facilities related
thereto employed in transportation, distribution or marketing or (b) any
refinery, smelter or processing or manufacturing plant, or portion thereof,
which the Board of Directors declares is not material to the business of the
applicable Issuer or the Guarantor and their respective subsidiaries taken as a
whole.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date", when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, trust officer, or assistant trust officer, the controller
and 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 to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company which owns
or leases (as lessor or lessee) a Principal Property but does not include the
Subsidiary Issuers or any Subsidiary of the Company the principal business of
which is leasing machinery, equipment, vehicles or other
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properties none of which is a Principal Property or financing accounts
receivable, or engaging in ownership and development of any real property which
is not a Principal Property.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness. as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Securityholder" means a Person in whose name a Security is registered
in the Security Register.
"Special Record Date" for the payment of any Defaulted Interest (as
defined in Section 307) means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon means the date specified in
such Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified Person means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by the specified Person or by one or more of its Subsidiaries, or
both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990, as in force at the date as
of which this instrument was executed except as provided in Section 905 and
except to the extent that any subsequent amendment thereto shall retroactively
apply to this Indenture.
"Trustee" means the Person named as the Trustee in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
and include each Person who is then a Trustee hereunder. If at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Vice President" when used with respect to the applicable Issuer, the
Guarantor or the Trustee means any vice president, whether or not designated by
a number or a word or words added before or after the title "vice president",
including, without limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any corporation, means stock
of any class or classes (however designated) having by the terms thereof
ordinary voting power to elect a majority of the members of the board of
directors (or other governmental body) of such corporation other than stock
having such power only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any application
or request by the applicable Issuer or the Guarantor to the Trustee to take any
action under any provision of this Indenture, such Issuer and 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, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
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provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the written
statement required by Section 1004) shall include
(1) a statement that each individual signing such certificate or
opinion has read and understands such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation that he believes is necessary to
enable him to express an informed opinion as to whether or not such covenant
or condition has been compiled with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person. or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify, or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer or the 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, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of such Issuer or the
Guarantor stating that the information with respect to such factual matters is
in the possession of such Issuer or the Guarantor unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by an
agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee, and, where it is hereby expressly required, to the
applicable Issuer and the Guarantor. If any Securities are denominated in coin
or currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of Securities
have taken any action as herein described, the principal amount of such
Securities shall be deemed to be that amount of United States dollars that could
be obtained for such principal amount on the basis of the spot rate of exchange
into United States dollars for the currency in which such Securities are
denominated (as evidenced to the Trustee by an Officers' Certificate) as of the
date the taking of such action by the
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Holders of such requisite principal amount is evidenced to the Trustee as
provided in the immediately preceding sentence. Such instrument or instruments
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 601 ) conclusive in favor of the Trustee and the
applicable Issuer and the Guarantor, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the applicable Issuer or the Guarantor shall solicit from the
Holders any request, demand, authorization, direction, notice. consent, waiver
or other action, such Issuer or the Guarantor may, at its option, by Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but such Issuer or the Guarantor shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the Trustee
or the Company in reliance thereon whether or not notation of such action is
made upon such Security.
Section 105. Notices, etc., to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, at 101 Barclay
Street, Floor 21 West, New York, New York, 10286, attention: Corporate Trust
Administration, or at any other address previously furnished in writing by
the Trustee, or
(2) an Issuer or the Guarantor by the Trustee or by any Securityholder
shall be sufficient for every purpose hereunder (except as provided in
Section 501(4) or, in the case of a request for repayment, as specified in
the Security carrying the right to repayment) if in writing and mailed,
first-class postage prepaid, to such Issuer or the Guarantor addressed to it
at the address of its
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principal office specified in the first paragraph of this instrument or at
any other address previously furnished in writing to the Trustee by the
Company.
Section 106. Notices to Securityholders; Waiver. Where this Indenture
or any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Securityholder affected by such event, at his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder
shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Securityholders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or otherwise, it shall be impractical to mail
notice of any event to any Securityholder when such notice is required to be
given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee, the applicable Issuer and
the Guarantor shall be deemed to be a sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with the duties imposed by any of Sections
310 to 317, inclusive, of the Trust Indenture Act through the operation of
Section 318(c) thereof, or with the duties imposed by any of Sections 77 to 88,
inclusive, of the Business Corporation Act (Alberta) such imposed duties shall
control.
Section 108. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 109. Successors and Assigns. All covenants and agreements in
this Indenture by any Issuer or the Guarantor shall bind its successors and
assigns, whether so expressed or not.
Section 110. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby. In case this Indenture is invalid,
illegal or unenforceable against one or more of the Subsidiary Issuers, the
validity, legality and enforceability against the Company shall not in any way
be affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in any
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Security Registrar and the Holders of Securities (or such of them as may be
affected thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. This Indenture shall be construed in
accordance with and governed by the laws of the State of New York.
Section 113. Counterparts. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
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Section 114. Judgment Currency. Each of the Issuers and the Guarantor
agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is
necessary to convert the sum due in respect of the principal of, or premium or
interest, if any, on the Securities of any series (the "Required Currency") into
a currency in which judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in the City of New York the
Required Currency with the Judgment Currency on the New York Banking Day (as
defined below) preceding that on which final unappealable judgment is given and
(b) its obligations under this Indenture to make payments in the Required
Currency (i) shall not be discharged or satisfied by any tender, or any recovery
pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent
that such tender or recovery shall result in the actual receipt, by the payee,
of the full amount of the Required Currency expressed to be payable in respect
of such payments, (ii) shall be enforceable as an alterative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture. For purposes
of the foregoing, "New York Banking Day" means any day except a Saturday, Sunday
or a legal holiday in the City of New York or a day on which banking
institutions in the City of New York are authorized or required by law or
executive order to close.
ARTICLE II
Security Forms
Section 201. Forms Generally. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed
thereon, as may be required to comply with applicable laws or regulations or
with the rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities, subject, with
respect to the Securities of any series, to the rules of any securities exchange
on which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the applicable Issuer shall deliver to the
Trustee the Board Resolution by or pursuant to which such form of Security has
been approved, which Board Resolution shall have attached thereto a true and
correct copy of the form of Security which has been approved thereby or, if a
Board Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
applicable Issuer.
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Section 203. Form of Trustee's Certificate of Authentication. The
form of Trustee's Certificate of Authentication for any Security issued pursuant
to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within mentioned Indenture.
--------------------------------------------
as Trustee,
By:
--------------------------------------
Authorized Signatory
Dated:
--------------------
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Section 204. Securities Issuable in the Form of a Global Security. (a)
If the applicable Issuer shall establish pursuant to Sections 202 and 301 that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the applicable Issuer and the
Guarantor shall execute and the Trustee or its agent shall, in accordance with
Section 303 and the Company Request delivered to the Trustee or its agent
thereunder, authenticate and deliver, such Global Security or Securities, which
(i) shall represent, and shall be denominated in an amount equal to the
aggregate principal amount of, the Outstanding Securities of such series to be
represented by such Global Security or Securities, or such portion thereof as
the applicable Issuer shall specify in a Company Request, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of
Section 305, and subject to the provisions of paragraph (c) below, unless the
terms of a Global Security expressly permit such Global Security to be exchanged
in whole or in part for individual Securities, a Global Security may be
transferred, in whole but not in part and in the manner provided in Section 305,
only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c)(i) If at any time the Depositary for a Global Security notifies
the applicable Issuer that it is unwilling or unable to continue as Depositary
for such Global Security or if at any time the Depositary for the Securities for
such series ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation, the
applicable Issuer shall appoint a successor Depositary with respect to such
Global Security. If a successor Depositary for such Global Security is not
appointed by the applicable Issuer within 90 days after the applicable Issuer
receives such notice or becomes aware of such ineligibility, the applicable
Issuer and the Guarantor will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The applicable Issuer may at any time and in its sole discretion
determine that the Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. Furthermore, if there shall
have occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to any series of Securities, the Trustee may determine that the
Securities of such series shall no longer be represented by a Global Security or
Securities. In such event the applicable Issuer and the Guarantor will execute,
and the Trustee, upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange in whole or in part
for such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for such Global Security
or Securities.
(iii) If specified by the applicable Issuer pursuant to Sections 202
and 301 with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the applicable Issuer and such Depositary. Thereupon the
applicable Issuer and the Guarantor shall
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execute, and the Trustee or its agent shall authenticate and deliver, without
service charge, (1) to each Person specified by such Depositary a new Security
or Securities of the same series of like tenor and terms and of any amount equal
to and in exchange for such Person's beneficial interest in the Global Security;
and (2) to such Depositary a new Global Security of like tenor and terms and in
an authorized denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Securities delivered to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the applicable Issuer and the Guarantor will execute and the Trustee
or its agent will authenticate and deliver individual Securities in definitive
registered form in authorized denominations. Upon the exchange of the entire
principal amount of a Global Security for individual Securities, such Global
Security shall be canceled by the Trustee or its agent. Except as provided in
the preceding paragraph, Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.
Section 205. Form of Notation of Guarantees. UNION PACIFIC RESOURCES
GROUP INC., a Utah corporation (the "Guarantor", which term includes any
successor thereto under the Indenture (the "Indenture") referred to in the
Security on which this notation is endorsed) has unconditionally guaranteed,
pursuant to the terms of the Guarantees contained in Article Twelve of the
Indenture, the due and punctual payment of the principal of and any premium and
interest on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption, early repayment or otherwise, in accordance with the terms of this
Security and the Indenture.
The obligations of the Guarantor to the Holders of the Securities and
to the trustee pursuant to the Guarantees and the Indenture are expressly set
forth in Article Twelve of the Indenture, and reference is hereby made to such
Article and Indenture for the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this notation of
the Guarantees is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
ARTICLE III
The Securities
Section 301. General Title; General Limitations; Issuable in Series;
Terms of Particular Series. The aggregate principal amount of Securities which
may be authenticated and delivered and Outstanding under this Indenture is not
limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors of the applicable Issuer and the Guarantor. All Securities of
each series under this Indenture shall in all respects be equally and ratably
entitled to the benefits hereof with respect to such series without preference,
priority or distinction on account of the actual time of the authentication and
delivery or Stated Maturity of the Securities of such series.
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Each series of Securities shall be created either by or pursuant to a
Board Resolution of the applicable Issuer and the Guarantor or by or pursuant to
an indenture supplemental hereto. The Securities of each such series may bear
such date or dates, be payable at such place or places, have such Stated
Maturity or Maturities, be issuable at such premium over or discount from their
face value, bear interest at such rate or rates (which may be fixed or
floating), from such date or dates, payable in such installments and on such
dates and at such place or places to the Holders of Securities registered as
such on such Regular Record Dates, or may bear no interest, and may be
redeemable or repayable at such Redemption Price or Prices or Repayment Price or
Prices, as the case may be, whether at the option of the Holder or otherwise,
and upon such terms, all as shall be provided for in or pursuant to the Board
Resolution of the applicable Issuer and the Guarantor or in or pursuant to the
supplemental indenture creating that series. There may also be established in or
pursuant to a Board Resolution or in or pursuant to a supplemental indenture
prior to the issuance of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at the
option of the Holders thereof, for or into new Securities of a different
series or other securities or other property, including shares of capital
stock of the applicable Issuer or the Guarantor or any subsidiary of such
Issuer or the Guarantor or securities directly or indirectly convertible into
or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including European Currency Units) in
which the Securities of such series shall be denominated and in which
payments of principal of, and any premium and interest on, such Securities
shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
applicable Issuer or a holder thereof, in a currency or currencies or units
based on or related to currencies (including European Currency Units) other
than that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such election
may be made;
(5) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of such series may be determined with
reference to an index based on (i) a currency or currencies or units based on
or related to currencies (including European Currency Units) other than that
in which the Securities are stated to be payable, (ii) changes in the price
of one or more other securities or groups or indexes of securities or (iii)
changes in the prices of one or more commodities or groups or indexes of
commodities, or any combination of the foregoing, the manner in which such
amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that series
is to be limited, such limitations;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same
aggregate principal amount of a different authorized kind or different
authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one or
more places other than the location of the office of the Trustee with power
to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the provisions of
this Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series;
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(9) the portion of the principal amount of Securities of the series, if
other than the total principal amount thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other changes
to the Events of Default set forth herein that shall be applicable to the
Securities of such series (including a provision making any Event of Default
set forth herein inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making any
Section of such Article inapplicable to the Securities of such series);
(12) the applicability of Section 403 of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Global Securities, the terms and
conditions, if any, upon which such Global Security or Global Securities may
be exchanged in whole or in part for other individual Securities; and the
Depositary for such Global Security or Global Securities (if other than the
Depositary specified in Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities of
any other series; and
(15) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such series. All
Securities of the same series shall be substantially identical in tenor and
effect, except as to denomination.
The form of the Securities of each series shall be established pursuant
to the provisions of this Indenture in or pursuant to the Board Resolution or in
or pursuant to the supplemental indenture creating such series. The Securities
of each series shall be distinguished from the Securities of each other series
in such manner, reasonably satisfactory to the Trustee, as the Board of
Directors of the applicable Issuer may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series
issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 302. Denominations. The Securities of each series shall be
issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of each of the applicable Issuer and any
Guarantees to be endorsed in the Securities shall be executed on behalf of the
Guarantor by its Chairman of the Board, its President, one of its Vice
Presidents or its Treasurer. The signature of any of these officers on the
Securities
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and the Guarantees, as the case may be, may be manual or facsimile. The notation
any Guarantees endorsed on the Securities shall be executed as provided in
Section 205.
Securities or Guarantees, as the case may be, bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the applicable Issuer or the Guarantor shall bind such Issuer or Guarantor, as
the case may be, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or Guarantees or did not hold such offices at the date of such
Securities or Guarantees.
At any time and from time to time after the execution and delivery of
this Indenture, the applicable Issuer may deliver Securities executed by it
bearing the notation of any Guarantees endorsed thereon, as applicable, in each
case executed by the Guarantor to the Trustee for authentication; and the
Trustee shall, upon Company Order, authenticate and deliver such Securities as
in this Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of
medium-term Securities under Section 311, the manner of determining the
terms) of such Securities have been established in conformity with the
provisions of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the applicable Issuer and, if applicable, the Guarantor of such
Securities and Guarantees, if applicable, have been complied with, each of
the applicable Issuer and the Guarantor, if applicable, has the corporate
power to issue such Securities and Guarantees, if applicable, and such
Securities and Guarantees, if applicable, have been duly authorized and
delivered by the applicable Issuer and, if applicable, the Guarantor and,
assuming due authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the applicable Issuer and, if applicable,
the Guarantor, respectively, enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws and legal principles
affecting creditors' rights generally from time to time in effect and to
general equitable principles, whether applied in an action at law or in
equity) and entitled to the benefits of this Indenture, equally and ratably
with all other Securities and Guarantees, if applicable, of such series
Outstanding;
(4) the Indenture is qualified under the Trust Indenture Act; and
(5) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the applicable Issuer
and, if applicable, the Guarantor of the supplemental indenture with respect to
that series of Securities have been complied with, each of the applicable Issuer
and, if applicable, the Guarantor has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
applicable Issuer and, if applicable, the Guarantor enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency,
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moratorium or other laws and legal principles affecting creditors' rights
generally from time to time in effect and to general equitable principles,
whether applied in an action at law or in equity.
The Trustee shall not be required to authenticate such Securities if
the issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the applicable Issuer may execute, and the
Guarantor may execute, as applicable, the notation of any Guarantees pursuant to
Article Twelve or any Guarantees endorsed on and, upon receipt of the documents
required by Section 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities or Guarantees or
notations of Guarantees may determine, as evidenced by their execution of such
Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the applicable Issuer
will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the applicable Issuer in a Place of Payment,
without charge to the Holder; and upon surrender for cancelation of any one or
more temporary Securities the applicable Issuer shall execute and the Guarantor
shall execute, as applicable, the notation of any Guarantees pursuant to Article
Twelve or the Guarantees endorsed on and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations and of like tenor and terms. Until so
exchanged the temporary Securities of such series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange. Each of the Issuers
shall keep or cause to be kept a register (herein sometimes referred to as the
"Security Register") in which, subject to such reasonable regulations as it may
prescribe, such Issuer shall provide for the registration of Securities, or of
Securities of a particular series, and for transfers of Securities or of
Securities of such series. Any such 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 information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the applicable Issuer as provided in Section 1002.
Subject to Section 204, upon surrender for transfer of any Security of
any series at the office or agency of the applicable Issuer in a Place of
Payment, the applicable Issuer shall execute, and the Guarantor shall execute,
as applicable, the notation of any Guarantees pursuant to Article Twelve or the
Guarantees endorsed on and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities and
the notation of Guarantees pursuant to Article Twelve or the Guarantees endorsed
thereon of such series of any authorized denominations, of a like aggregate
principal amount and Stated Maturity and of like tenor and terms.
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Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
applicable Issuer shall execute, and the Guarantor shall execute, as applicable,
the notation of any Guarantees pursuant to Article Twelve or the Guarantees
endorsed on and the Trustee shall authenticate and deliver, the Securities and
the notation of Guarantees pursuant to Article Twelve or the Guarantees endorsed
thereon which the Securityholder making the exchange is entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall
be the valid obligations of the applicable Issuer and, if applicable, the
Guarantor, evidencing the same debt, and entitled to the same benefits under the
Indenture, as the Securities surrendered upon such transfer or exchange.
Every Security presented or surrendered for transfer or exchange shall
(if so required by the applicable Issuer or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
applicable Issuer and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the applicable Issuer may (unless
otherwise provided in such Security) require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges pursuant to
Section 304 or 906 not involving any transfer.
The applicable Issuer shall not be required (i) to issue, transfer or
exchange any Security of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption under Section 1103 and ending
at the close of business on the date of such mailing, or (ii) to transfer or
exchange any Security so selected for redemption in whole or in part, except for
the portion of such Security not so selected for redemption.
None of the applicable Issuer, the Guarantor, the Trustee, any agent of
the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The applicable Issuer initially appoints the Trustee to act as Security
Registrar for the Securities on its behalf. The applicable Issuer may at any
time and from time to time authorize any Person to act as Security Registrar in
place of the Trustee with respect to any series of Securities issued under this
Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If (i)
any mutilated Security is surrendered to the Trustee, or if the applicable
Issuer, the Guarantor and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Security, and (ii) there is delivered to
the applicable Issuer, 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 applicable Issuer or the Trustee that such Security has been
acquired by a bona fide purchaser, the applicable Issuer shall execute and the
Guarantor shall execute, as applicable, the notation of any Guarantees pursuant
to Article Twelve or the Guarantees endorsed thereon and upon its request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen
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Security, a new Security of like tenor, series, Stated Maturity 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 applicable Issuer or the
Guarantor, each in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the
applicable Issuer or the Guarantor, as the case may be, may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security and any Guarantees thereof shall constitute
an original additional contractual obligation of the applicable Issuer and the
Guarantor, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of the
same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other nights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 301,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security 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 Regular Record Date by virtue of his having been such
Holder, and, except as hereinafter provided, such Defaulted Interest may be paid
by the applicable Issuer or the Guarantor, at its election in each case, as
provided in Clause (1) or Clause (2) below:
(1) The applicable Issuer or the Guarantor may elect to make payment of
any Defaulted Interest to the Persons in whose names any such Securities (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest
which shall be fixed in the following manner. The applicable Issuer or the
Guarantor shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the date of the
proposed payment, and at the same time such Issuer or the Guarantor shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date
of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date for
the payment of such Defaulted Interest which shall be not more than 15 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 applicable Issuer or the
Guarantor of such Special Record Date and, in the name and at the expense of
such Issuer or the Guarantor, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record
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Date therefor to be mailed, first-class postage prepaid, to the Holder of
each such Security at his address as it appears in the Security Register, not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names such Securities (or their respective Predecessor
Securities) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Clause (2).
(2) The applicable Issuer or the Guarantor may make payment of any
Defaulted Interest 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 such Issuer or the Guarantor to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
If any installment of interest the Stated Maturity of which is on or
prior to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The applicable Issuer, the
Guarantor, the Trustee and any agent of such Issuer, the Guarantor, or the
Trustee may treat the Person in whose name any Security is registered in the
Security Register as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Section 307)
interest on, such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither such Issuer, the Guarantor, the Trustee
nor any agent of the such Issuer, the Guarantor or the Trustee shall be affected
by notice to the contrary.
Section 309. Cancelation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already canceled, shall be promptly canceled by it. Any
Issuer or the Guarantor may at any time deliver to the Trustee for cancelation
any Securities previously authenticated and delivered hereunder which such
Issuer or the Guarantor may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. No Security
shall be authenticated in lieu of or in exchange for any Securities canceled as
provided in this Section, except as expressly permitted by this Indenture. The
Trustee shall dispose of all canceled Securities in accordance with its
customary procedures and shall deliver a certificate of such disposition to the
applicable Issuer or the Guarantor.
Section 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
Solely for purposes of the Interest Act (Canada), the yearly rate of
interest to which interest calculated for a period of less than one year on the
basis of a year of 360 days consisting of 12 30-day periods is equivalent is
such rate of interest multiplied by a fraction of which (i) the numerator is the
product of (A) the actual number of days in the year commencing on the first day
of such period, multiplied by (B) the sum of (y) the product of 30 multiplied by
the number of complete months elapsed in such period and (z) the actual number
of days elapsed in any incomplete month in such period; and (ii) the denominator
is the product of (a) 360 multiplied by (b) the actual number of days in such
period. The theory of "deemed reinvestment" shall not apply to the computation
of interest and no allowance, reduction or deduction shall be made for the
deemed reinvestment of interest in respect of any payments. Calculation of
interest shall be made using the nominal rate method, and not the effective rate
method, of calculation.
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Section 311. Medium-term Securities. Notwithstanding any contrary
provision herein, if all Securities of a series are not to be originally issued
at one time, it shall not be necessary for the applicable Issuer or the
Guarantor to deliver to the Trustee an Officers' Certificate, Board Resolution,
supplemental indenture, Opinion of Counsel or Company Request otherwise required
pursuant to Sections 202, 301 and 303 at or prior to the time of authentication
of each Security of such series if such documents are delivered to the Trustee
or its agent at or prior to the authentication upon original issuance of the
first Security of such series to be issued; provided that any subsequent request
by such Issuer or the Guarantor to the Trustee to authenticate Securities of
such series upon original issuance shall constitute a representation and
warranty by the applicable Issuer or the Guarantor that as of the date of such
request, the statements made in the Officers' Certificate delivered pursuant to
Section 102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the applicable Issuer or the Guarantor to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Securities
which are the subject thereof will be authenticated and delivered by the Trustee
or its agent on original issue from time to time upon the telephonic or written
order of persons designated in such Officers' Certificate, Board Resolution or
supplemental indenture (any such telephonic instructions to be confirmed
promptly in writing by such persons) and that such persons are authorized to
determine, consistent with such Officers' Certificate, supplemental indenture or
Board Resolution, such terms and conditions of said Securities as are specified
in such Officers' Certificate, supplemental indenture or Board Resolution.
ARTICLE IV
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to any series of Securities
(except as to any surviving rights of conversion, transfer or exchange of
Securities of such series expressly provided for herein or in the form of
Security for such series and the rights, obligations and immunities of the
Trustee), and the Trustee, on demand of and at the expense of the applicable
Issuer or the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of that series theretofore authenticated
and delivered (other than (i) Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as
provided in Section 306, and (ii) Securities of such series for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the applicable Issuer or the Guarantor and thereafter
repaid to such Issuer or the Guarantor or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee
canceled or for cancelation; or
(B) all such Securities of that series not theretofore
delivered to the Trustee canceled or for cancelation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the applicable Issuer or the Guarantor,
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and the applicable Issuer or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient without reinvestment thereof to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee canceled or for cancelation, for principal (and
premium, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable), or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the applicable Issuer or the Guarantor has paid or caused to be
paid all other sums payable hereunder by such Issuer or the Guarantor with
respect to the Securities of such series;
(3) No Event of Default under Sections 501(5) or (6) shall have
occurred or be continuing on the date of such deposit and no default or Event
of Default under Sections 501(5) or (6) shall occur on or before the 123rd
day after the date of such deposit; and
(4) the applicable Issuer or the Guarantor has delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture with respect to the Securities of such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, the obligations of the applicable Issuer and the
Guarantor to the Trustee with respect to that series under Section 607 shall
survive and the obligations of the Trustee under Sections 402 and 1003 shall
survive.
Section 402. Application of Trust Money. All money and obligations
deposited with the Trustee pursuant to Section 401 or Section 403 and all money
received by the Trustee in respect of such obligations shall be held in trust
and applied by it, in accordance with the provisions of the series of Securities
in respect of which it was deposited and this Indenture, to the payment, either
directly or through any Paying Agent (including the applicable Issuer or the
Guarantor acting as its own Paying Agent) as the Trustee may determine, to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money and obligations have been deposited with or
received by the Trustee; but such money and obligations need not be segregated
from other funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of Securities of
any Series. If this Section 403 is specified, as contemplated by Section 301, to
be applicable to Securities of any series, the applicable Issuer and the
Guarantor shall be deemed to have paid and discharged the entire indebtedness on
all the Securities of any such series at the time outstanding, and the Trustee,
at the expense of such Issuer and the Guarantor, shall execute proper
instruments acknowledging satisfaction, discharge and defeasance of such
indebtedness, when
(1) either
(A) with respect to all Securities of such series at the time
outstanding,
(i) the applicable Issuer or the Guarantor has
deposited or caused to be deposited with the Trustee as trust
funds in trust for such purpose an amount sufficient, together
with any obligations deposited pursuant to clause (ii) below,
without reinvestment thereof, to pay and discharge the entire
indebtedness on all such Securities for principal (and
premium, if any) and interest, on the days on which such
principal (and premium, if any) or interest, as the case may
be, is due and payable in accordance with the terms of this
Indenture and such Securities, to the date of maturity or date
of redemption thereof as contemplated by the penultimate
paragraph of this Section 403, as the case may be; or
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(ii) the applicable Issuer or the Guarantor has
deposited or caused to be deposited with the Trustee as
obligations in trust for such purpose such amount of direct
obligations of, or obligations the principal of and interest
on which are fully guaranteed by, the government which issued
the currency in which such Securities are denominated (other
than such obligations as are redeemable at the option of the
issuer thereof) as will, together with the income to accrue
thereon without consideration of any reinvestment thereof, be
sufficient, in the written opinion of a firm of nationally
recognized independent public accountants delivered to the
Trustee, together with any funds deposited pursuant to clause
(i) above, to pay and discharge the entire indebtedness on all
such Securities for principal (and premium, if any) and
interest, on the days on which such principal (and premium, if
any) or interest, as the case may be, is due and payable in
accordance with the terms of this Indenture and such
Securities, to the date of maturity or date of redemption
thereof as contemplated by the penultimate paragraph of this
Section 403, as the case may be; or
(B) the applicable Issuer or the Guarantor has properly
fulfilled such other means of satisfaction and discharge as is
specified, as contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the applicable Issuer or the Guarantor has paid or caused to be
paid all other sums payable with respect to the Securities of such series at
the time Outstanding;
(3) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or
instrument to which the applicable Issuer or the Guarantor is a party or by
which it is bound;
(4) no Event of Default or event which, after notice or lapse of time
or both, would become an Event of Default shall have occurred and be
continuing on the date of such deposit;
(5) each of the applicable Issuer and the Guarantor has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided
for relating to the satisfaction, discharge and defeasance of the entire
indebtedness on all Securities of any such series at the time Outstanding
have been complied with;
(6) each of the applicable Issuer and the Guarantor shall have
delivered to the Trustee (A) 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 Issuer's or Guarantor's
exercise of its option under this Section 403 and will be subject to Federal
income tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, and, in the
case of Securities being discharged, accompanied by a ruling to that effect
from the Internal Revenue Service, unless, as set forth in such Opinion of
Counsel, there has been a change in the applicable federal income tax law
since the date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required and (B) an Opinion of Counsel, subject to such
qualifications, exceptions, assumptions and limitations as are reasonably
deemed necessary by such counsel and are reasonably satisfactory to counsel
for the Trustee, to the effect that the trust resulting from the deposit
referred to in paragraph (1) above does not violate the Investment Company
Act of 1940; and
(7) each of the applicable Issuer and the Guarantor shall have
delivered to the Trustee an Officers' Certificate stating that the deposit
referred to in paragraph (1) above was not made by such Issuer or Guarantor,
as applicable, with the intent of preferring the Holders over other creditors
of such Issuer or Guarantor, as applicable, or with the intent of defeating,
hindering, delaying or defrauding creditors of such Issuer, Guarantor or
others.
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Any deposits with the Trustee referred to in Section 403(l)(A) above
shall be irrevocable. If any Securities of such series at the time outstanding
are to be redeemed prior to their Stated Maturity, whether pursuant to any
optional redemption provisions or in accordance with any mandatory sinking fund
requirement, the applicable Issuer and the Guarantor shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Securities of any series at the time Outstanding, the
terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture (except as to any surviving rights
of conversion, transfer or exchange of Securities of such series expressly
provided for herein or in the form of Security for such series and the rights,
obligations and immunities of the Trustee), shall no longer be binding upon, or
applicable to, the applicable Issuer and the Guarantor, provided that neither
such Issuer nor the Guarantor shall be discharged from any payment obligations
in respect of Securities of such series which are deemed not to be Outstanding
under clause (iii) of the definition thereof if such obligations continue to be
valid obligations of such Issuer or the Guarantor under applicable law.
Notwithstanding the satisfaction of the conditions set forth in this Section 403
with respect to all Securities of any series at the time Outstanding, the
obligations of the applicable Issuer and the Guarantor to the Trustee with
respect to that series under Section 607 and the obligations of the Trustee with
respect to that series under Section 402 and 1003 shall survive. If the Trustee
or any Paying Agent is unable to apply in accordance with this Section 403 any
deposit by reason of such deposit being deemed to be a preference or an asset of
a bankruptcy estate of the applicable Issuer or the Guarantor under the Federal
Bankruptcy Code in connection with a default or an Event of Default under
Sections 501(5) or(6), such Issuer's and the Guarantor's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 403 until such time, if any, as the
Trustee or such Paying Agent is permitted to apply such deposit in accordance
with this Section 403; provided, however, that if such Issuer or the Guarantor
has made any payment of interest on or principal of any of the Securities
because of the reinstatement of its obligations, such Issuer or the Guarantor
shall be subrogated to the Securityholders to receive such payment from any
deposit held by the Trustee or such Paying Agent.
ARTICLE V
Remedies
Section 501. Events of Default. "Event of Default", wherever used
herein, means with respect to any series of Securities any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on)
any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when the same becomes due by the terms of the Securities of such
series; or
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(4) default in the performance, or breach, of any covenant or warranty
of the applicable Issuer or the Guarantor in this Indenture in respect of the
Securities of such series (other than a covenant or warranty in respect of
the Securities of such series a default in the performance of which or the
breach of which is elsewhere in this Section specifically dealt with), all of
such covenants and warranties in the Indenture which are not expressly stated
to be for the benefit of a particular series of Securities being deemed in
respect of the Securities of all series for this purpose, and continuance of
such default or breach for a period of 90 days after there has been given, by
registered or certified mail, to such Issuer or the Guarantor by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in principal
amount of the Outstanding Securities of such series, a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(5) the entry of an order for relief against the applicable Issuer or
the Guarantor under the Federal Bankruptcy Code by a court having
jurisdiction in the premises or a decree or order by a court having
jurisdiction in the premises adjudging such Issuer or the Guarantor a
bankrupt or insolvent under any other applicable Federal or State law, or the
equivalent legislation in the jurisdiction of incorporation or formation of
such Issuer if not the United States or the entry of a decree or order
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of such Issuer or the Guarantor
under the Federal Bankruptcy Code or any other applicable Federal or State
law, or the equivalent legislation in the jurisdiction of incorporation or
formation of such Issuer if not the United States or appointing a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
such Issuer or the Guarantor or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of 60
consecutive days, or
(6) the consent by the applicable Issuer or the Guarantor to the
institution of bankruptcy or insolvency proceedings against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under the Federal Bankruptcy Code or any other applicable Federal or State
law or the equivalent legislation in the jurisdiction of incorporation for
formation of such Issuer if not then United States, or the consent by it to
the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
such Issuer or the Guarantor or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by such Issuer or the
Guarantor in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in paragraph ( 1), (2), (3), (4), or (7) (if the
Event of Default under paragraph (4) or (7) is with respect to less than all
series of Securities then Outstanding) of Section 501 occurs and is continuing
with respect to any series, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
applicable Issuer and the Guarantor (and to the Trustee if given by Holders),
may declare the principal amount (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of all the Securities of such series
then Outstanding and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities of
such series contained to the contrary notwithstanding. If an Event of Default
described in paragraph (4) or (7) (if the Event of Default under paragraph (4)
or (7) is with respect to all series of Securities then Outstanding), (5) or (6)
of
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Section 501 occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the applicable Issuer and the Guarantor (and
to the Trustee if given by Holders), may declare the principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Securities
then Outstanding and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the applicable
Issuer, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if
(1 ) the applicable Issuer or the Guarantor has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
(B) the principal of (and premium, if any, on) any Securities
of such series which have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate or rates prescribed
therefor by the terms of the Securities of such series, to the extent
that payment of such interest is lawful,
(C) interest upon overdue installments of interest at the rate
or rates prescribed therefor by the terms of the Securities of such
series to the extent that payment of such interest is lawful, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and all other amounts due the Trustee
under Section 607;
and
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such series
which have become due solely by such acceleration, have been cured or waived
as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. Each of the Issuers and the Guarantor covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the Securities
of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the applicable Issuer or the Guarantor will, upon
demand of the Trustee, pay to it, for the
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benefit of the Holder of any such Security (or the Holders of any such series in
the case of Clause (3) above), the whole amount then due and payable on any such
Security (or on the Securities of any such series in the case of Clause (3)
above) for principal (and premium, if any) and interest, with interest, to the
extent that payment of such interest shall be legally enforceable, upon the
overdue principal (and premium, if any) and upon overdue installments of
interest, at such rate or rates as may be prescribed therefor by the terms of
any such Security (or of Securities of any such series in the case of Clause (3)
above); and, in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel and all other amounts due the Trustee under Section 607.
If the applicable Issuer or the Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against such Issuer or the Guarantor or any
other obligor upon the Securities of such series and collect the money adjudged
or decreed to be payable in the manner provided by law out of the property of
such Issuer or the Guarantor or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of Securities occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any applicable Issuer or the Guarantor or any other obligor upon the Securities
or the property of the applicable Issuer or the Guarantor or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on such Issuer or the Guarantor for the payment of overdue principal
or interest) shall be entitled and empowered, by intervention in such
proceedings 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
and to file such other papers or documents as may be necessary and 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 all other amounts due the Trustee under Section
607 (such compensation, expenses, disbursements and advances of the Trustee
intending to constitute expenses of administration under the Federal
Bankruptcy Code or the equivalent legislation in the jurisdiction of
incorporation or formation of such Issuer, if not the United States)) and of
the Securityholders 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 receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of
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the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607 (such compensation, expenses, disbursements and advances of the
Trustee intending to constitute expenses of administration under the Federal
Bankruptcy Code or the equivalent legislation in the jurisdiction of
incorporation or formation of such Issuer, if not the United States).
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or 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 Securityholder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 agent and
counsel, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities of such series and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, in
respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively.
THIRD: To the applicable Issuer.
Section 507. Limitation on Suits. No Holder of any Security of any
series shall have any right to institute any proceeding, judicial or otherwise,
with respect to this Indenture, or for the appointment of a receiver or trustee,
or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of such series;
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it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
Section 508. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment of the principal of (and premium, if any)
and (subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the applicable Issuer, the Guarantor,
the Trustee and the Securityholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the
Securityholders shall continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities
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of such series waive any past default hereunder with respect to such series and
its consequences, except a default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or interest
on any Security of such series, or in the payment of any sinking or purchase
fund or analogous obligation with respect to the Securities of such series,
or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
Section 515. Waiver of Stay or Extension Laws. Each of the Issuers and
the Guarantor covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and each of the Issuers and the Guarantor (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE VI
The Trustee
Section 601. Certain Duties and Responsibilities. (a) Except during
the continuance of an Event of Default with respect to any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under
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a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of
the Holders of a majority in principal amount of the Outstanding Securities
of any series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(d) whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
Section 602. Notice of Defaults. Within 90 days after the occurrence of
any default hereunder with respect to Securities of any series, the Trustee
shall transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived:
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation with respect to Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Securityholders of such series; and provided
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee. Except as otherwise provided
in Section 601:
(a) the Trustee may rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent,
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order, bond, debenture or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of any Issuer or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of any Issuer or the Guarantor, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Issuers and the
Guarantor, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Issuers or the Guarantor of Securities or the proceeds
thereof.
Section 605. May Hold Securities. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Issuers or the Guarantor, in its
individual or an other capacity, may become the owner or pledgee of Securities
and, subject to Sections 608 and 613, may otherwise deal with each of the
Issuers and the Guarantor with the same rights it would have if it were not
Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the applicable Issuer
or the Guarantor.
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Section 607. Compensation and Reimbursement. Each of the Issuers and
the Guarantor agrees
(1) to pay to the Trustee from time to time such compensation, as the
parties shall agree from time to time, for all services rendered by it
hereunder, including extraordinary services such as default administration
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust):
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including, the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense.
disbursement or advance as may be attributable to acts or omissions of the
Trustee, if any, relating to incurring such expenses, disbursements and
advances that are in breach of applicable standard of care imposed upon the
Trustee pursuant to this Indenture; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred unless such loss, liability or expense
was incurred in breach of applicable standard of care imposed on the Trustee
by this Indenture, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the applicable
Issuer and the Guarantor under this Section the Trustee shall have a lien prior
to the Securities upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest on particular Securities.
Section 608. Disqualification; Conflicting Interests. The Trustee for
the Securities of any series issued hereunder shall be subject to the provisions
of Section 310(b) of the Trust Indenture Act during the period of time provided
for therein. In determining whether the Trustee has a conflicting interest as
defined in Section 301(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310 (b) the Securities of every
other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder with respect to each series of Securities,
which shall be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of 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. If at
any time the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section or in accordance with
Section 310(a)(5) of the Trust Indenture Act, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee under Section 611.
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(b) The Trustee may resign with respect to any series of Securities at
any time by giving written notice thereof to the applicable Issuer and the
Guarantor. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities
at any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of that series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of notice of such
removal, the removed Trustee may petition any court of competant jurisdiction
for the appointment of a successor trustee.
(d) If at any time:
(1) the Trustee shall fall to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608(a) with respect to any series of
Securities after written request therefor by the applicable Issuer or the
Guarantor or by any Securityholder who has been a bona fide Holder of a
Security of that series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the applicable Issuer or the Guarantor or by any such
Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the applicable Issuer or the Guarantor by a Board
Resolution may remove the Trustee, with respect to the series, or in the case of
Clause (4), with respect to all series, or (ii) subject to Section 514, any
Securityholder who has been a bona fide Holder of a Security of such series for
at least 6 months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the series, or, in the
case of Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series delivered to the applicable Issuer and the Guarantor
and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with
respect to such series and supersede the successor Trustee appointed by such
Issuer and the Guarantor with respect to such series. If no successor Trustee
with respect to such series shall have been so appointed by such Issuer and the
Guarantor or the Securityholders of such series and accepted appointment in the
manner hereinafter provided, any Securityholder who has been a bona fide Holder
of a Security of that series for at least 6 months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to such series.
(f) The applicable Issuer shall give notice of each resignation and
each removal of the Trustee with respect to any series and each appointment of a
successor Trustee with respect to any
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series by mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of Securities of that series as their names and
addresses appear in the Security Register. Each notice shall include the name of
the successor Trustee and the address of its principal Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Issuers, the Guarantor and to the predecessor Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the predecessor Trustee with respect to any such
series, but, on request of any of the Issuers, the Guarantor or the successor
Trustee, such predecessor Trustee shall, upon payment of its reasonable charges,
if any, execute and deliver an instrument transferring to such successor Trustee
all the rights, powers and trusts of the predecessor Trustee, and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such predecessor Trustee hereunder with respect to all or any such
series, subject nevertheless to its lien, if any, provided for in Section 607.
Upon request of any such successor Trustee, each of the Issuers and the
Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confining to such successor Trustee all such rights, powers and
trusts.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series of one or more
Issuers, the applicable Issuer, the Guarantor, the predecessor Trustee and each
successor Trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not being
succeeded shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be Trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any other
such Trustee.
No successor Trustee with respect to any series of Securities shall
accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible with respect to that series under this
Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company. (a)
Subject to Subsection (b) of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of any Issuer
or the Guarantor within 3 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
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of the Trustee individually, the Holders of the Securities and the holders of
other indenture securities (as defined in Subsection (c) of this Section):
(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 3-month period and valid as against the
applicable Issuer or the Guarantor and its 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 such Issuer or the Guarantor upon the date of
such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or composition
thereof, or otherwise, after the beginning of such 3-month period, or an
amount equal to the proceeds of any such property, if disposed of, subject,
however, to the rights, if any, of the applicable Issuer or the Guarantor and
its 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 such Issuer or the Guarantor) who is
liable thereon, and (ii) the proceeds of the bona fide sale of any such claim
by the Trustee to a third person, and (iii) distributions made in cash,
securities or other property in respect of claims filed against such Issuer
or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law
or equivalent legislation in the jurisdiction of incorporation of such Issuer
if not the United States;
(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 3-month 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 3-month
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 would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property as security for such claim as
provided in 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 3-month 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 repaving or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing 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
between the Trustee, the Securityholders and the holders of other indenture
securities in such manner that the Trustee, the 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 applicable Issuer
or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law,
the same percentage of their respective claims, figured before crediting to the
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claim of the Trustee anything on account of the receipt by it from such Issuer
or the Guarantor of the funds and property in such special account and before
crediting to the respective claims of the Trustee and the Securityholders and
the holders of other indenture securities dividends on claims filed against such
Issuer or the Guarantor in bankruptcy or receivership or in proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law or
equivalent legislation in the jurisdiction of Incorporation of such Issuer, if
not the United States, 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 proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law or equivalent legislation in the
jurisdiction of Incorporation of such Issuer, if not the United States, 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 proceedings for
reorganization is pending shall have jurisdiction (i) to apportion between the
Trustee and the 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 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 and the 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 claims, or otherwise to apply the provisions of this
paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of
such 3-month period shall be subject to the provisions of this Subsection as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such 3-month period. it shall be
subject to the provisions of this Subsection 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 3-month
period; and
(ii) such receipt of property or reduction of claim occurred
within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section 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 advances and of the circumstances surrounding the making
thereof is given to the Securityholders at the time and in the manner
provided in this Indenture;
(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 depositary, 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;
(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
(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.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of the
principal of or interest on any of the Securities or upon the other indenture
securities when and as such principal or interest becomes due and payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section and (iii) under which
a default exists at the time of the apportionment of the funds and property
held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 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" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the applicable Issuer or the Guarantor for the purpose of
financing the purchase, processing, manufacturing, 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 such Issuer or the Guarantor arising from the making,
drawing, negotiating or incurring of the draft, bill of exchange, acceptance
or obligation.
(5) The terms "Issuer" and "Guarantor" mean any obligor upon the
Securities.
Section 614. Appointment of Authenticating Agent. At any time when any
of the Securities remain Outstanding the Trustee, with the approval of the each
of the applicable Issuers and the Guarantor, may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof or pursuant to Section 306, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and, if other than any of the Issuers or
the Guarantor, subject to supervision or examination by Federal or
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State authority. If such Authenticating Agent publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and, if other than the applicable Issuer or the
Guarantor, to the applicable Issuer and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and, if other than the applicable Issuer or
the Guarantor, to the applicable Issuer and the Guarantor. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee, with the approval of the applicable
Issuer and the Guarantor, may appoint a successor Authenticating Agent which
shall be acceptable to such Issuer and the Guarantor and shall mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of any of the Issuers or the
Guarantor from time to time and acceptable to the Trustee) reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of
Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
--------------------------------------------
as Trustee
By:
---------------------------------------
As Authenticating Agent
By:
---------------------------------------
Authorized Signatory
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ARTICLE VII
Securityholders' Lists and Reports by
Trustee, the Issuers and the Guarantor
Section 701. The Issuers and the Guarantor To Furnish Trustee
Names and Addresses of Securityholders. Each of the Issuers and the Guarantor
will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after each Regular
Record Date, in each year in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of Securities
of such series as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the applicable Issuer or the
Guarantor of any such request, a list of similar form and content as of
a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities of any series
(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 of such series for a period of at least 6 months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the 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
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) 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 Section 702(a), and as to
the approximate cost of mailing to such Securityholders the form of
proxy or other communication, 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 Holder of a Security of such series or to all
Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), 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
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Securityholders, 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 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 Securityholders
of such series or all Securityholders, as the case may be, 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) Every Holder of Securities, by receiving and holding the
same, agrees with the each of the Issuers, the Guarantor and the Trustee that
neither the Company nor the Trustee 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 Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
Section 703. Reports by Trustee. (a) The term "reporting date"
as used in this Section means March 15 of each year. Within 60 days after the
reporting date in each year, beginning in 2000, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear in the Security
Register, a brief report dated as of such reporting date with respect to any of
the following events which may have occurred during the 12 months preceding the
date of such report (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(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 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 report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (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 an indebtedness based upon a
creditor relationship arising in an manner described in Section
613(b)(2), (3), (4) or (6);
(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 hereunder 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 the Trustee
in accordance with Section 602.
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(b) The Trustee shall transmit by mail to all Securityholders,
as their names and addresses appear in the Security Register, 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
Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) 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 10% or less of
the principal amount of the Securities Outstanding of such series at such time,
such report to be transmitted within 90 days after such time.
(c) 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 are listed, and also with the Commission. The
applicable Issuer will notify the Trustee when the Securities are listed on any
stock exchange.
Section 704. Reports by the Issuers and the Guarantor. Each of
the Issuers and the Guarantor will
(1) file with the Trustee, within 15 days after such Issuer
and 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 such Issuer and 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 such Issuer and the Guarantor
is not required to file information, documents or reports pursuant to
either of said Sections, then it will 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;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional Information, documents and reports with
respect to compliance by such Issuer and the Guarantor with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names
and addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by such Issuer and the
Guarantor pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
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Section 801. Company May Consolidate, etc. only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, the due and punctual payment of the principal of (and
premium, if any) and interest on all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Subsidiary Issuers May Consolidate, etc. only on
Certain Terms. Each of the Subsidiary Issuers shall not consolidate or
amalgamate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or
amalgamation or into which such Subsidiary Issuer is merged or the
Person which acquires by conveyance or transfer the properties and
assets of such Subsidiary Issuer substantially as an entirety shall be
a corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia or of Canada
or any province or territory thereof, and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the due and punctual payment of
the principal of (and premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of such Subsidiary Issuer to be performed or observed;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing; and
(3) such Subsidiary Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, amalgamation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 803. Successor Corporation Substituted. Upon any
consolidation, amalgamation or merger, or any conveyance or transfer of the
properties and assets of an Issuer or the Guarantor substantially as an entirety
in accordance with Section 801 or Section 802, the successor corporation formed
by such consolidation or amalgamation or into which such Issuer or the Guarantor
is merged or to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, such Issuer or
the Guarantor under this Indenture with the same effect as if such successor
corporation had been named as such Issuer or the
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Guarantor herein. In the event of any such conveyance or transfer, such Issuer
or the Guarantor as the predecessor corporation may be dissolved, wound up or
liquidated at any time thereafter.
ARTICLE IX
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Securityholders. Without the consent of the Holders of any Securities, any
Issuer and the Guarantor, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(1) to evidence the succession of another corporation to such
Issuer or the Guarantor, and the assumption by any such successor of
the covenants of such Issuer or the Guarantor herein and in the
Securities contained; or
(2) to add to the covenants of such Issuer or the Guarantor,
or to surrender any right or power herein conferred upon such Issuer or
the Guarantor, for the benefit of the Holders of the Securities of any
or all series (and if such covenants or the surrender of such right or
power are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included or such
surrenders are expressly being made solely for the benefit of one or
more specified series); or
(3) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; or
(4) to add to this Indenture such provisions as may be
expressly permitted by the TIA, excluding, however, the provisions
referred to in Section 316(a)(2) of the TIA as in effect at the date as
of which this instrument was executed or any corresponding provision
similar federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof, and/or to
add to the rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as
well as fully registered form.
No supplemental indenture for the purposes identified in
Clauses (2), (3), (5) or (7) above may be entered into if to do so would
adversely affect the interest of the Holders of Securities of any series.
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Section 902. Supplemental Indentures with Consent of
Securityholders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture or indentures, by Act of said Holders delivered to the
applicable Issuer, the Guarantor and the Trustee, the applicable Issuer and the
Guarantor, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of the
Securities of each such series under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Maturity of the principal of, or the Stated
Maturity of any premium on, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest or any
premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place
of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Maturity or the Stated Maturity, as the case may be, thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences, provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not (except to the
extent required in the case of a supplemental indenture entered into under
Section 901(4) or 901(6) in which case such supplemental indenture shall not
adversely affect the Trustee's own rights, duties or immunities without the
consent of the Trustee) be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith,
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and such supplemental indenture shall form a part of this Indenture for all
purposes, and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby to the extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the applicable Issuer and the
Guarantor shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any such supplemental
indenture may be prepared and executed by such Issuer and the Guarantor and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
ARTICLE X
Covenants
Section 1001. Payment of Principal, Premium and Interest. With
respect to each series of Securities, each of the Issuers will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. Each of the
Issuers will maintain an office or agency in each Place of Payment where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for transfer or exchange and where notices and demands to or upon
such Issuer in respect of the Securities and this Indenture may be served. Each
applicable Issuer will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time any Issuer shall fail to maintain such office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the principal Corporate Trust
Office of the Trustee, and each of the Issuers hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
The Guarantor will maintain an office or agency in each Place
of Payment where Securities to which the Guarantees apply where such Securities
may be presented or surrendered for payment pursuant to the Guarantees and where
notice and demands to or upon the Guarantor in respect of the Guarantees and
this Indenture may be served. The Guarantor will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Guarantor shall fail to maintain any such office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders and demands may be made or served at the Principal
Corporate Trust Office of the Trustee, and the Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders and demands.
Section 1003. Money for Security Payments to be Held in Trust.
If any of the Issuers or the Guarantor shall at any time act as its own Paying
Agent for any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on, any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and will promptly notify the Trustee of its
action or failure to act.
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Whenever the Issuers or the Guarantor shall have one or more
Paying Agents for any series of Securities, it will, on or prior to each due
date of the principal of (and premium, if any) or interest on, any Securities of
such series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal (and premium, if any)
or interest, and (unless such Paying Agent is the Trustee) the applicable Issuer
will promptly notify the Trustee of its action or failure so to act.
The applicable Issuer will cause each Paying Agent other than
the Trustee for any series of Securities to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the applicable
Issuer (or any other obligor upon the Securities of such series) in the
making of any such payment of principal (and premium, if any) or
interest on the Securities of such series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
Any of the Issuers may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture with respect to any
series of Securities or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by any of the
Issuers or such Paying Agent in respect of each and every series of Securities
as to which it seeks to discharge this Indenture or, if for any other purpose,
all sums so held in trust by any of the Issuers in respect of all Securities,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by any of the Issuers or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the any of the Issuers or the Guarantor, in trust for the payment
of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to such Issuer or
the Guarantor on Company Request, or (if then held by such Issuer or the
Guarantor) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to such Issuer or
the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of such Issuer
or the Guarantor as trustee thereof, shall thereupon cease. The Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the applicable Issuer or the Guarantor mail to the Holders of the
Securities as to which the money to be repaid was held in trust, as their names
and addresses appear in the Security Register, a notice that such moneys remain
unclaimed and that, after a date specified in the notice, which shall not be
less than 30 days from the date on which the notice was first mailed to the
Holders of the Securities as to which the money to be repaid was held in trust,
any unclaimed balance of such moneys then remaining will be paid to such Issuer
or the Guarantor free of the trust formerly impressed upon it.
Each of the Issuers and the Guarantor initially authorizes the
Trustee to act as Paying Agent for the Securities on its behalf. Any Issuer or
the Guarantor may at any time and from time to time authorize one or more
Persons to act as Paying Agent in addition to or in place of the Trustee with
respect to any series of Securities issued under this Indenture.
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Section 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written statement signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating that
(1) a review of the activities of the Company and the
Subsidiary Issuers during such year and of each of the Company's and
the Subsidiary Issuers' performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, each
of the Company and the Subsidiary Issuers has complied with all
conditions and covenants under this Indenture through such year, or,
if there has been a default in the fulfillment of any such obligation,
specifying each such default known to him and the nature and status
thereof.
Section 1005. Corporate Existence. Subject to Article Eight
each of the Issuers and the Guarantors will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
Section 1006. Limitation on Liens and Sale Leaseback
Transactions. (a) So long as any of the Securities of any of the Issuers shall
be Outstanding, the Company will not, nor will it permit any Subsidiary to,
create, assume, incur or suffer to exist any Mortgage upon any stock or
Indebtedness, whether owned on the date of this Indenture or hereafter acquired,
of any Domestic Subsidiary, to secure any Debt of the Company or any other
Person (other than the Securities), without in any such case making effective
provision whereby all of the Securities Outstanding shall be directly secured
equally and ratably with such Debt, excluding, however, from the operation of
the foregoing provisions of this Subsection (a) any Mortgage upon stock or
indebtedness of any corporation existing at the time such corporation becomes a
Domestic Subsidiary, or existing upon stock or indebtedness of a Domestic
Subsidiary at the time of acquisition of such stock or indebtedness, and any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any such Mortgage; provided, however that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement;
and provided further, that such Mortgage shall be limited to all or such part of
the stock or indebtedness which secured the Mortgage so extended, renewed or
replaced.
(b) So long as any of the Securities of any of the Issuers
shall be Outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, create, assume, incur or suffer to exist any Mortgage upon any
Principal Property, whether owned or leased on the date of this Indenture or
hereafter acquired, to secure any Debt of the Company or any other Person (other
than the Securities), without in any such case making effective provision
whereby all of the Securities outstanding shall be directly secured equally and
ratably with such Debt, excluding, however, from the operation of the foregoing
provisions of this Subsection (b):
(i) any Mortgage upon property owned or leased by any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) any Mortgage upon 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 180 days after the acquisition of such property for
the purpose of financing all or any part of the purchase price thereof;
(iii) any Mortgage upon property to secure all or any part of
the cost of exploration, drilling, development, construction,
alteration, repair or improvement of all or any part of such property,
or Debt incurred prior to, at the time of or within 180 days after the
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completion of such exploration, drilling, development, construction,
alteration, repair or improvement for the purpose of financing all or
any part of such cost;
(iv) any Mortgage securing Debt of a Restricted Subsidiary
owing to the Company or to another Restricted Subsidiary;
(v) any Mortgage existing at the date of this Indenture; and
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Mortgage referred to in the foregoing clauses (i) to (v), inclusive;
provided, however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement; and provided further, that such
Mortgage shall be limited to all or such part of the property which
secured the Mortgage so extended, renewed or replaced (plus
improvements on such property).
Notwithstanding the foregoing provisions of this Subsection (b), the Company
may, and may permit any Restricted Subsidiary to create, assume, incur or suffer
to exist any Mortgage upon any Principal Property which is not excepted by
clauses (i) through (vi) above without equally and ratably securing the
Securities, provided that the aggregate amount of all Debt then outstanding
secured by such Mortgage and all similar Mortgages does not exceed 10% of the
total consolidated stockholders' equity of the Company as shown on the audited
consolidated balance sheet contained in the latest annual report to stockholders
of the Company. For the purpose of this Subsection (b), the following types of
transactions shall not be deemed to create a Mortgage to secure any Debt:
(i) the sale or other transfer of (A) any oil or gas or
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 oil or gas or
minerals, or (B) any other interest in property of the character
commonly referred to as a "production payment"; and
(ii) any Mortgage in favor of the United States of America or
any State thereof, or any other country, or any political subdivision
of any of the foregoing, to secure partial, progress, advance or other
payments pursuant to the provisions of any contract or statute, or any
Mortgage upon property of the Company or a Restricted Subsidiary
intended to be used primarily for the purpose of or in connection with
air or water pollution control, provided that no such Mortgage shall
extend to any other property of the Company or any Restricted
Subsidiary.
(c) So long as any of the Securities of any of the Issuers
shall be Outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Company or a Restricted Subsidiary as lessee of any Principal
Property (except for temporary leases for a term, including renewals, of not
more than five years), which property has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such Person (herein referred to
as a "Sale-Leaseback Transaction"), unless (i) such Sale-Leaseback Transaction
occurs within 120 days from the date of acquisition of such Principal Property
or the date of the completion of construction or commencement of full operations
on such Principal Property, whichever is later, or (ii) the Company, within 120
days after such Sale-Leaseback Transaction, applies or causes to be applied to
the retirement of Funded Debt of the Company or any Subsidiary (other than
Funded Debt of the Company which by its terms or the terms of the instrument
pursuant to which it was issued is subordinate in right of payment to the
Securities) an amount not less than the net proceeds of the sale of such
Principal Property.
Notwithstanding the foregoing provisions of this paragraph
(c), the Company may, and may permit any Restricted Subsidiary to, effect any
Sale-Leaseback Transaction involving any
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Principal Property, provided that the net sale proceeds from such Sale-Leaseback
Transaction, together with all Debt secured by Mortgages not specifically
excluded pursuant to clauses (i) through (vi) of paragraph (b) of this Section
1006 from the operation of such paragraph (b), does not exceed 10% of the total
consolidated stockholders' equity of the Company as shown on the audited
consolidated balance sheet contained in the latest annual report to stockholders
of the Company.
Section 1007. Limitation on Transfers of Principal Properties
to Unrestricted Subsidiaries. So long as any of the Securities of any of the
Issuers shall be Outstanding, the Company will not, nor will it permit any
Restricted Subsidiary to, sell, transfer or otherwise dispose of any Principal
Property to any Unrestricted Subsidiary other than for cash or other
consideration which, in the opinion of the Board of Directors of the Company,
constitutes fair value for such Principal Property.
Section 1008. Waiver of Certain Covenants. Any of the Issuers
and the Guarantor may omit in respect of any series of Securities, in any
particular instance, to comply with any covenant or condition set forth in
Sections 1006 and 1007, if before or after the time for such compliance the
Holders of at least a majority in principal amount of the Securities at the time
Outstanding of such series shall, by Act of such Securityholders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE XI
Redemption of Securities
Section 1101. Applicability of Article. Any of the Issuers may
reserve the right to redeem and pay before Stated Maturity all or any part of
the Securities of any series, either by optional redemption, sinking or purchase
fund or analogous obligation or otherwise, by provision therefor in the form of
Security for such series established and approved pursuant to Section 202 and on
such terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made in accordance
with the terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The
election of an Issuer to redeem any Securities redeemable at the election of
such Issuer shall be evidenced by, or made pursuant to authority granted by, a
Board Resolution. In case of any redemption at the election of an Issuer of any
Securities of any series, such Issuer shall, at least 60 days prior to the
Redemption Date fixed by such Issuer (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. No optional
redemption (other than in whole) of any series of Securities shall be made so
long as any Event of Default or any event which, after notice or lapse of time
or both, shall be an Event of Default shall have occurred and be continuing with
respect to such series of Securities.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of an
Issuer which is subject to a condition specified in the terms of such
Securities, such Issuer shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to be
Redeemed. If less than all the Securities of like tenor and terms of any series
are to be redeemed, the particular Securities to be
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redeemed shall be selected not more than 60 days prior to the Redemption Date
pro rata, by lot or by the Trustee, from the Outstanding Securities of such
series not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may include provision for the selection for
redemption of portions of the principal of Securities of such series of a
denomination larger than the minimum authorized denomination for Securities of
that series. Unless otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so selected for partial
redemption shall be equal to the minimum authorized denomination of the
Securities of such series, or an integral multiple thereof, and the principal
amount which remains outstanding shall not be less than the minimum authorized
denomination for Securities of such series. If less than all the Securities of
unlike tenor and terms of a series are to be redeemed, the particular Securities
to be redeemed shall be selected by the applicable Issuer.
The Trustee shall promptly notify the applicable Issuer in
writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in
part, to the portion of the principal of such Security which has been or is to
be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the Securities to be
redeemed, from the Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest, if
any, thereon shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the applicable Issuer in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the
election of an Issuer shall be given by such Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
Section 1105. Deposit of Redemption Price. Prior to 10:00a.m.
on any Redemption Date, the applicable Issuer shall deposit with the Trustee or
with a Paying Agent (or, if such Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
immediately available funds sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date.
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Section 1106. Securities Payable on Redemption Date. Notice of
Redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the applicable Issuer
shall default in the payment of the Redemption Price) such Securities shall
cease to bear interest. Upon surrender of such Securities for redemption in
accordance with the notice, such Securities shall be paid by the applicable
Issuer at the Redemption Price. Installments of interest the Stated Maturity of
which is on or prior to the Redemption Date shall be payable to the Holders of
such Securities registered as such on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security, or as
otherwise provided in such Security.
Section 1107. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the applicable Issuer in the Place of Payment with respect to that series (with,
if the applicable Issuer or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the applicable Issuer and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing) and the applicable Issuer shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge,
a new Security or Securities of the same series and Stated Maturity and of like
tenor and terms, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
Section 1108. Provisions with Respect to any Sinking Funds.
Unless the form or terms of any series of Securities shall provide otherwise, in
lieu of making all or any part of any mandatory sinking fund payment with
respect to such series of Securities in cash, the applicable Issuer may at its
option (1) deliver to the Trustee for cancelation any Securities of such series
theretofore acquired by such Issuer, or (2) receive credit for any Securities of
such series (not previously so credited) acquired by such Issuer and theretofore
delivered to the Trustee for cancelation or redeemed by such Issuer other than
through the mandatory sinking fund, and if it does so then (i) Securities so
delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, such Issuer will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by such Issuer or so redeemed, and (B) such
Securities so acquired, to the extent not previously surrendered. Such Officers'
Certificate shall also state the basis for such credit and that the Securities
for which such Issuer elects to receive credit have not been previously so
credited and were not redeemed by such Issuer through operation of the mandatory
sinking fund, if any, provided with respect to such Securities and shall also
state that no Event of Default with respect to Securities of such series has
occurred and is continuing. All Securities so delivered to the Trustee shall be
canceled by the Trustee and no Securities shall be authenticated in lieu
thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash plus any unused
balance of any preceding sinking fund payments with respect to Securities of
such series made in cash shall exceed $50,000 (or a lesser sum if the applicable
Issuer shall so request), unless otherwise provided by the terms of such series
of Securities, that cash shall be applied by the Trustee on the sinking fund
Redemption Date with respect to Securities of such series next following the
date of such payment to the redemption of Securities of such series at the
applicable sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee shall select,
in the manner provided in Section 1103, for redemption on such sinking fund
Redemption Date a sufficient principal amount of Securities of
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54
such series to utilize that cash and shall thereupon cause notice of redemption
of the Securities of such series for the sinking fund to be given in the manner
provided in Section 1104 (and with the effect provided in Section 1106) for the
redemption of Securities in part at the option of the applicable Issuer. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to Securities
of any series held by the Trustee at the Maturity of Securities of such series,
and not held for the payment or redemption of particular Securities of such
series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the applicable Issuer shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to the date fixed
for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.
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ARTICLE XII
Guarantees of Securities of Subsidiary Issuers
Section 1201. Guarantees. This Section 1201 and Section 1202
apply to the Securities of any series of any Subsidiary Issuer to the extent
that the form of the Guarantees to be endorsed on such Securities is not
otherwise established as contemplated by Section 3.01.
The Guarantor hereby fully and unconditionally guarantees to
each Holder of a Security of each series issued by a Subsidiary Issuer,
authenticated and delivered by the Trustee the due and punctual payment of the
principal (including any amount due in respect of any Original Issue Discount
Security) of and any premium and interest on such Security, and the due and
punctual payment of any sinking fund payments provided for pursuant to the terms
of such Security, when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption, early
repayment or otherwise, in accordance with the terms of such Security and this
Indenture. The Guarantor hereby agrees that in the event of an Event of Default
its obligations hereunder shall be as if it were a principal debtor and not
merely a surety, and shall be absolute and unconditional, irrespective of, and
shall be unaffected by, any invalidity, irregularity or unenforceability of any
Security of any series or this Indenture, any failure to enforce the provisions
of any Security of any series or this Indenture, any waiver, modification or
indulgence granted to the applicable Subsidiary Issuer with respect thereto, by
the Holder of any Security of any series of such Subsidiary Issuer or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or Guarantor; provided, however, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of any
Security of a Subsidiary Issuer or the Interest rate thereon or increase any
premium payable upon redemption thereof. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the applicable Subsidiary Issuer, any right to require a
proceeding first against such Subsidiary Issuer, the benefit of discussion,
protest or notice with respect to any Security of such Subsidiary Issuer or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Security issued under this Indenture and
all demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to such Security except by payment in full of the principal thereof
and any premium and interest thereon or as provided in Article Four or Section
801. If any Holder or the Trustee is required by any court or otherwise to
return to any Subsidiary Issuer, the Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to such Issuer or the
Guarantor any amount paid by such Issuer or the Guarantor to the Trustee or such
Holder, this Guarantee to the extent theretofore discharged, shall be reinstated
in full force and effect. The Guarantor further agrees that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
the Maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor also agrees, to pay any and all reasonable costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantee hereby waives any right of set-off which the
Guarantor may have against the Holder of any Security of a Subsidiary Issuer in
respect of any amounts which are or may become payable by such Holder to such
Subsidiary Issuer.
The Guarantor shall be subrogated to all rights of the Holders
of any series of Securities and the Trustee against the applicable Subsidiary
Issuer in respect of any amounts paid to such Holders and the Trustee by the
Guarantor pursuant to the provisions of the Guarantees; provided, however, that
the Guarantor shall not be entitled to enforce or to receive any payments
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56
arising out of or based upon, such right of subrogation until the principal of,
premium, if any, and interest, if any, on all of the Securities of such series
shall have been paid in full.
No past, present or future stockholder, officer, director,
employee or incorporator of the Guarantor shall have any personal liability
under the Guarantees set forth in this Section 1201 by reason of his or its
status as such stockholder, officer, director, employee or incorporator.
The Guarantees set forth in this Section 1201 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
Section 1202. Execution of Guarantees. To evidence its
Guarantee to the Holders specified in Section 1201, the Guarantor hereby agrees
to execute the notation of the Guarantee in substantially the form set forth in
Section 205 to be endorsed on each Security of each Subsidiary Issuer
authenticated and delivered by the Trustee. The Guarantor hereby agrees that its
Guarantee set forth in Section 1201 shall remain in full force and effect
notwithstanding any failure to endorse on each Security of each Subsidiary.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UNION PACIFIC RESOURCES GROUP INC.,
by /s/ Morris B. Smith
--------------------------------------
Name: Morris B. Smith
Title: Vice President and Chief
Financial Officer
UNION PACIFIC RESOURCES INC,
by /s/ Joseph A. LaSala, Jr.
--------------------------------------
Name: Joseph A. LaSala, Jr.
Title: Vice President
UPR CAPITAL COMPANY,
by /s/ B. M. Lamkin
-------------------------------------
Name: B. M. Lamkin
Title: Treasurer
THE BANK OF NEW YORK,
by /s/ Iliana A. Arciprete
--------------------------------------
Name: Iliana A. Arciprete
Title: Assistant Treasurer
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Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or 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 since the registered owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7.30% Note due April 15, 2009
Registered $200,000,000
No. R-1 CUSIP 907834 AH 8
UNION PACIFIC RESOURCES GROUP INC., a corporation duly
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organized and existing under the laws of the State of Utah (herein called the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $200,000,000 at the office or agency of the Company in the Borough of Manhattan, The City of New York, on April 15, 2009 in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest on said principal sum semiannually on April 15 and October 15 of each year, commencing October 15, 1999, at said office or agency, in like coin or currency, at the rate per annum specified in the title hereof, from the April 15 or the October 15, as the case may be, next preceding the date of
this Note to which interest on the Notes has been paid or duly provided for (unless the date hereof is the date to which interest on the Notes has been paid or duly provided for, in which case from the date of this Note), or, if no interest has been paid on the Notes or duly provided for, from April 13, 1999 until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after the 30th day or 31st day, respectively, of any April or October and before the next succeeding April 15 or October 15, this Note shall bear interest from such April 15 or October 15, as the case may be; provided, however, that if the Company shall default in the payment of interest due on such April 15 or October 15, then this Note shall bear interest from the next preceding April 15 or October 15 to which interest on the Notes has been paid or duly provided for, or, if no interest has been paid on the Notes or duly provided for, from April 13, 1999. The interest so payable, and punctually paid or duly provided for, on any April 15 or October 15 will, except as provided in the Indenture dated as of April 13, 1999 (herein called the "Indenture"), duly executed and delivered by the Company, Union Pacific Resources Inc., an Alberta corporation, UPR Capital Company, a Nova Scotia unlimited liability company, and The Bank of New York, as Trustee (herein called the "Trustee"), be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on the next preceding April 1 or October 1, as the case may be (herein called the "Regular Record Date"), whether or not a Business Day, and may, at the option of the Company, be paid by check mailed to the registered address of such Person. Any such interest which is payable, but is not so punctually paid or duly provided for, shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may be paid either to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Notes not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed and upon such notice as may be required by such exchange, if such manner of payment shall be deemed practical by the Trustee, all as more fully provided in the Indenture. Notwithstanding the foregoing, in the case of interest payable at Stated Maturity, such
interest shall be paid to the same Person to whom the principal hereof is payable.
The Bank of New York will be the Paying Agent and the Security Registrar with respect to the Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Security Registrar, to appoint additional or other Paying Agents and other Security Registrars, which may include the Company, and to approve any change in the office through which any Paying Agent or Security Registrar acts; provided that there will at all times be a Paying Agent in The City of New York and there will be no more than one Security Registrar for the Notes.
This Note is one of the duly authorized issue of debentures, notes, bonds or other evidences of indebtedness (hereinafter called the "Securities") of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture, to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee and any agent of the Trustee, any Paying Agent, the Company and the Holders of the Securities and the terms upon which the Securities are issued and are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as provided or permitted in the Indenture. This Note is one of the series of Securities of the Company issued pursuant to the Indenture and designated as the 7.30% Notes due April 15, 2009 (herein called the "Notes"), limited in aggregate principal amount to $200,000,000.
The Notes will be redeemable as a whole or in part, at the option of the Company at any time, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments (as
hereinafter defined) thereon, discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 35 basis points, plus accrued interest on the principal amount being redeemed to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Notes to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes.
"Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any successor release) is not available or does not contain such prices on such business day, the arithmetic average of the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation and its successors; provided, however, that if Credit Suisse First Boston shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer by 5:00 p.m. on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Note, the remaining scheduled payments of the principal thereof to be redeemed and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such Security, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal of all of the Notes may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of each series under the Indenture with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected thereby on behalf of the Holders of all Securities of such series. The Indenture also permits the Holders of a majority in principal amount of the Securities at the time Outstanding of each series, on
behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain trust funds in trust, the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Securities of any series and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Securities of such series.
The Notes are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company in the Borough of Manhattan, The City of New York, designated for such purpose and in the manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Note at the office or agency of the Company in the Borough of Manhattan, The City of New York designated for such purpose, a new Note or Notes of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture.
No charge shall be made for any such transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Note shall be construed in accordance with and governed by the laws of the State of New York.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Note shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP
INC. has caused this Note to be duly executed.
Dated: April 13, 1999 UNION PACIFIC RESOURCES
GROUP INC.
by /s/ Morris B. Smith
---------------------------
Name: Morris B. Smith
Vice President and
Chief Financial
Officer
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[SEAL]
Attest: /s/ Leslie H. Flores
---------------------
Name: Leslie H. Flores
Title: Assistant Secretary
|
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
by /s/ Iliana A. Arciprete
------------------------
Authorized Signatory
Dated: April 13, 1999
|
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
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:
Note on the books of the Company, with full power of substitution in the premises.
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or 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 since the registered owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7.95% Debenture due April 15, 2029
Registered $200,000,000
No. R-1 CUSIP 907834 AJ 4
UNION PACIFIC RESOURCES GROUP INC., a corporation duly
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organized and existing under the laws of the State of Utah (herein called the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $200,000,000 at the office or agency of the Company in the Borough of Manhattan, The City of New York, on April 15, 2029 in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest on said principal sum semiannually on April 15 and October 15 of each year, commencing October 15, 1999, at said office or agency, in like coin or currency, at the rate per annum specified in the title hereof, from the April 15 or the October 15, as the case may be, next preceding the date of
this Debenture to which interest on the Debentures has been paid or duly provided for (unless the date hereof is the date to which interest on the Debentures has been paid or duly provided for, in which case from the date of this Debenture), or, if no interest has been paid on the Debentures or duly provided for, from April 13, 1999 until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after the 30th day or 31st day, respectively, of any April or October and before the next succeeding April 15 or October 15, this Debenture shall bear interest from such April 15 or October 15, as the case may be; provided, however, that if the Company shall default in the payment of interest due on such April 15 or October 15, then this Debenture shall bear interest from the next preceding April 15 or October 15 to which interest on the Debentures has been paid or duly provided for, or, if no interest has been paid on the Debentures or duly provided for, from April 13, 1999. The interest so payable, and punctually paid or duly provided for, on any April 15 or October 15 will, except as provided in the Indenture dated as of April 13, 1999 (herein called the "Indenture"), duly executed and delivered by the Company, Union Pacific Resources Inc., an Alberta corporation, UPR Capital Company, a Nova Scotia unlimited liability company, and The Bank of New York, as Trustee (herein called the "Trustee"), be paid to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on the next preceding April 1 or October 1, as the case may be (herein called the "Regular Record Date"), whether or not a Business Day, and may, at the option of the Company, be paid by check mailed to the registered address of such Person. Any such interest which is payable, but is not so punctually paid or duly provided for, shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may be paid either to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debentures not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures may be listed and upon such notice as may be required by such exchange, if such manner of payment shall be deemed practical by the Trustee, all as more fully provided in the Indenture.
Notwithstanding the foregoing, in the case of interest payable at Stated Maturity, such interest shall be paid to the same Person to whom the principal hereof is payable.
The Bank of New York will be the Paying Agent and the Security Registrar with respect to the Debentures. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Security Registrar, to appoint additional or other Paying Agents and other Security Registrars, which may include the Company, and to approve any change in the office through which any Paying Agent or Security Registrar acts; provided that there will at all times be a Paying Agent in The City of New York and there will be no more than one Security Registrar for the Debentures.
This Debenture is one of the duly authorized issue of debentures, notes, bonds or other evidences of indebtedness (hereinafter called the "Securities") of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture, to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee and any agent of the Trustee, any Paying Agent, the Company and the Holders of the Securities and the terms upon which the Securities are issued and are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as provided or permitted in the Indenture. This Debenture is one of the series of Securities of the Company issued pursuant to the Indenture and designated as the 7.95% Debentures due April 15, 2029 (herein called the "Debentures"), limited in aggregate principal amount to $300,000,000.
The Debentures will be redeemable as a whole or in part, at the option of the Company at any time, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed and (ii) the sum of the
present values of the Remaining Scheduled Payments (as hereinafter defined) thereon, discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 40 basis points, plus accrued interest on the principal amount being redeemed to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Debentures to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Debentures.
"Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any successor release) is not available or does not contain such prices on such business day, the arithmetic average of the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation and its successors; provided, however, that if Credit Suisse First Boston shall cease to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer by 5:00 p.m. on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Debenture, the remaining scheduled payments of the principal thereof to be redeemed and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such Security, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of Debentures to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Debentures or portions thereof called for redemption.
If an Event of Default with respect to the Debentures shall occur and be continuing, the principal of all of the Debentures may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of each series under the Indenture with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected thereby on behalf of the
Holders of all Securities of such series. The Indenture also permits the Holders of a majority in principal amount of the Securities at the time Outstanding of each series, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain trust funds in trust, the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Securities of any series and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Securities of such series.
The Debentures are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Debentures may be exchanged for a like aggregate principal amount of Debentures of other authorized denominations at the office or agency of the Company in the Borough of Manhattan, The City of New York, designated for such purpose and in the manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Debenture at the office or agency of the Company in the Borough of Manhattan, The City of New York designated for such purpose, a new Debenture or Debentures of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture.
No charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debenture is registered as the owner hereof for all purposes, whether or not this Debenture is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Unless otherwise defined herein, all terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Debenture shall be construed in accordance with and governed by the laws of the State of New York.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Debenture shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP
INC. has caused this Debenture to be duly executed.
Dated: April 13, 1999 UNION PACIFIC RESOURCES
GROUP INC.
by /s/ Morris B. Smith
-------------------------
Name: Morris B. Smith
Title: Vice President and
Chief Financial
Officer
[SEAL]
Attest: /s/ Leslie H. Flores
------------------------
Name: Leslie H. Flores
Title: Assistant Secretary
|
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
by /s/ Iliana A. Arciprete
------------------------
Authorized Signatory
Dated: April 13, 1999
|
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
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:
attorney to transfer said Debenture on the books of the Company, with full power of substitution in the premises.
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or 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 since the registered owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY AS REFERRED TO IN THE INDENTURE HEREINAFTER REFERENCED. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Union Pacific Resources Group Inc.
7.95% Debenture due April 15, 2029
Registered $100,000,000
No. R-1 CUSIP 907834 AJ 4
UNION PACIFIC RESOURCES GROUP INC., a corporation duly
|
organized and existing under the laws of the State of Utah (herein called the "Company", which term includes any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to
Cede & Co.
or registered assigns, the principal sum of $100,000,000 at the office or agency of the Company in the Borough of Manhattan, The City of New York, on April 15, 2029 in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest on said principal sum semiannually on April 15 and October 15 of each year, commencing October 15, 1999, at said office or agency, in like coin or currency, at the rate per annum specified in the title hereof, from the April 15 or the October 15, as the case may be, next preceding the date of
this Debenture to which interest on the Debentures has been paid or duly provided for (unless the date hereof is the date to which interest on the Debentures has been paid or duly provided for, in which case from the date of this Debenture), or, if no interest has been paid on the Debentures or duly provided for, from April 13, 1999 until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after the 30th day or 31st day, respectively, of any April or October and before the next succeeding April 15 or October 15, this Debenture shall bear interest from such April 15 or October 15, as the case may be; provided, however, that if the Company shall default in the payment of interest due on such April 15 or October 15, then this Debenture shall bear interest from the next preceding April 15 or October 15 to which interest on the Debentures has been paid or duly provided for, or, if no interest has been paid on the Debentures or duly provided for, from April 13, 1999. The interest so payable, and punctually paid or duly provided for, on any April 15 or October 15 will, except as provided in the Indenture dated as of April 13, 1999 (herein called the "Indenture"), duly executed and delivered by the Company, Union Pacific Resources Inc., an Alberta corporation, UPR Capital Company, a Nova Scotia unlimited liability company, and The Bank of New York, as Trustee (herein called the "Trustee"), be paid to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on the next preceding April 1 or October 1, as the case may be (herein called the "Regular Record Date"), whether or not a Business Day, and may, at the option of the Company, be paid by check mailed to the registered address of such Person. Any such interest which is payable, but is not so punctually paid or duly provided for, shall forthwith cease to be payable to the registered Holder on such Regular Record Date and may be paid either to the Person in whose name this Debenture (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Debentures not less than 10 days prior to such Special Record Date, or may be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Debentures may be listed and upon such notice as may be required by such exchange, if such manner of payment shall be deemed practical by the Trustee, all as more fully provided in the Indenture.
Notwithstanding the foregoing, in the case of interest payable at Stated Maturity, such interest shall be paid to the same Person to whom the principal hereof is payable.
The Bank of New York will be the Paying Agent and the Security Registrar with respect to the Debentures. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Security Registrar, to appoint additional or other Paying Agents and other Security Registrars, which may include the Company, and to approve any change in the office through which any Paying Agent or Security Registrar acts; provided that there will at all times be a Paying Agent in The City of New York and there will be no more than one Security Registrar for the Debentures.
This Debenture is one of the duly authorized issue of debentures, notes, bonds or other evidences of indebtedness (hereinafter called the "Securities") of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture, to which Indenture and any other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations, duties and immunities thereunder of the Trustee and any agent of the Trustee, any Paying Agent, the Company and the Holders of the Securities and the terms upon which the Securities are issued and are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as provided or permitted in the Indenture. This Debenture is one of the series of Securities of the Company issued pursuant to the Indenture and designated as the 7.95% Debentures due April 15, 2029 (herein called the "Debentures"), limited in aggregate principal amount to $300,000,000.
The Debentures will be redeemable as a whole or in part, at the option of the Company at any time, at a redemption price equal to the greater of (i) 100% of the principal amount to be redeemed and (ii) the sum of the
present values of the Remaining Scheduled Payments (as hereinafter defined) thereon, discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as hereinafter defined) plus 40 basis points, plus accrued interest on the principal amount being redeemed to the redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term of the Debentures to be redeemed that would be used, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Debentures.
"Independent Investment Banker" means one of the Reference Treasury Dealers appointed by the Trustee after consultation with the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i) the arithmetic average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as published in the daily statistical release (or any successor release) by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (ii) if such release (or any successor release) is not available or does not contain such prices on such business day, the arithmetic average of the Reference Treasury Dealer Quotations for such redemption date.
"Reference Treasury Dealer" means Credit Suisse First Boston Corporation and its successors; provided, however, that if Credit Suisse First Boston shall cease to be a primary U.S. Government securities dealer in New York
City (a "Primary Treasury Dealer"), the Company shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer by 5:00 p.m. on the third business day preceding such redemption date.
"Remaining Scheduled Payments" means, with respect to any Debenture, the remaining scheduled payments of the principal thereof to be redeemed and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such Security, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
Notice of any redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of Debentures to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Debentures or portions thereof called for redemption.
If an Event of Default with respect to the Debentures shall occur and be continuing, the principal of all of the Debentures may be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Securities of each series under the Indenture with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series to be affected thereby on behalf of the
Holders of all Securities of such series. The Indenture also permits the Holders of a majority in principal amount of the Securities at the time Outstanding of each series, on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Debenture shall be conclusive and binding upon such Holder and upon all future Holders of this Debenture and of any Debenture issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Debenture or such other Debentures.
No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Debenture at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.
As provided in the Indenture and subject to the satisfaction of certain conditions therein set forth, including the deposit of certain trust funds in trust, the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and the obligations under, the Securities of any series and to have satisfied all the obligations (with certain exceptions) under the Indenture relating to the Securities of such series.
The Debentures are issuable in registered form without coupons in denominations of $1,000 and any integral multiple of $1,000. Debentures may be exchanged for a like aggregate principal amount of Debentures of other authorized denominations at the office or agency of the Company in the Borough of Manhattan, The City of New York, designated for such purpose and in the manner and subject to the limitations provided in the Indenture.
Upon due presentment for registration of transfer of this Debenture at the office or agency of the Company in the Borough of Manhattan, The City of New York designated for such purpose, a new Debenture or Debentures of authorized denominations for a like aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture.
No charge shall be made for any such transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Debenture is registered as the owner hereof for all purposes, whether or not this Debenture is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Unless otherwise defined herein, all terms used in this Debenture which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
This Debenture shall be construed in accordance with and governed by the laws of the State of New York.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Debenture shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, UNION PACIFIC RESOURCES GROUP
INC. has caused this Debenture to be duly executed.
Dated: April 13, 1999 UNION PACIFIC RESOURCES
GROUP INC.
by /s/ Morris B. Smith
-------------------------
Name: Morris B. Smith
Title: Vice President and
Chief Financial
Officer
[SEAL]
Attest: /s/ Leslie H. Flores
---------------------
Name: Leslie H. Flores
Title: Assistant Secretary
|
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee,
by /s/ Iliana A. Arciprete
------------------------
Authorized Signatory
Dated: April 13, 1999
|
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
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 Debenture and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Debenture on the books of the Company, with full power of substitution in the premises.
(Signature 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.)
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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) / /
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------
|
UNION PACIFIC RESOURCES GROUP INC.
(Exact name of obligor as specified in its charter)
Utah 13-2647483 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 801 Cherry Street Fort Worth, Texas 76102 (Address of principal executive offices) (Zip code) |
Union Pacific Resources Inc.
(Exact name of obligor as specified in its charter)
Alberta, Canada 98-0186874 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 400, 425-1st Street S.W. Calgary, Alberta, Canada T2P4V4 (Address of principal executive offices) (Zip code) |
UPR Capital Company
(Exact name of obligor as specified in its charter)
Nova Scotia, Canada Not Applicable
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
400, 425-1st Street S.W.
Calgary, Alberta, Canada T2P4V4
(Address of principal executive offices) (Zip code)
----------
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Debt Securities
(Title of the indenture securities)
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
------------------------------------------------------------------------
Name Address
------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
|
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.)
7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, 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 12th day of April, 1999.
THE BANK OF NEW YORK
By: /s/REMO J. REALE
--------------------------------
Name: REMO J. REALE
Title: ASSISTANT VICE PRESIDENT
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SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York, 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 13th day of April, 1999.
THE BANK OF NEW YORK
By: /s/REMO J. REALE
--------------------------------
Name: REMO J. REALE
Title: ASSISTANT VICE PRESIDENT
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Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
in Thousands
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. $ 3,951,273
Interest-bearing balances.......................... 4,134,162
Securities:
Held-to-maturity securities........................ 932,468
Available-for-sale securities...................... 4,279,246
Federal funds sold and Securities purchased under
agreements to resell............................... 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned
income.................................37,861,802
LESS: Allowance for loan and
lease losses..............................619,791
LESS: Allocated transfer risk
reserve.....................................3,572
Loans and leases, net of unearned income,
allowance, and reserve........................... 37,238,439
Trading Assets........................................ 1,551,556
Premises and fixed assets (including capitalized
leases)............................................ 684,181
Other real estate owned............................... 10,404
Investments in unconsolidated subsidiaries and
associated companies............................... 196,032
Customers' liability to this bank on acceptances
outstanding........................................ 895,160
Intangible assets..................................... 1,127,375
Other assets.......................................... 1,915,742
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Total assets.......................................... $60,077,664
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LIABILITIES
Deposits:
In domestic offices................................ $27,020,578
Noninterest-bearing......................11,271,304
Interest-bearing.........................15,749,274
In foreign offices, Edge and Agreement
subsidiaries, and IBFs........................... 17,197,743
Noninterest-bearing.........................103,007
Interest-bearing.........................17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase........................... 1,761,170
Demand notes issued to the U.S.Treasury............... 125,423
Trading liabilities................................... 1,625,632
Other borrowed money:
With remaining maturity of one year or less........ 1,903,700
With remaining maturity of more than one year
through three years.............................. 0
With remaining maturity of more than three years... 31,639
Bank's liability on acceptances executed and
outstanding........................................ 900,390
Subordinated notes and debentures..................... 1,308,000
Other liabilities..................................... 2,708,852
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Total liabilities..................................... 54,583,127
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EQUITY CAPITAL
Common stock.......................................... 1,135,284
Surplus............................................... 764,443
Undivided profits and capital reserves................ 3,542,168
Net unrealized holding gains (losses) on
available-for-sale securities...................... 82,367
Cumulative foreign currency translation adjustments... (29,725)
-----------
Total equity capital.................................. 5,494,537
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Total liabilities and equity capital.................. $60,077,664
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I, Thomas J. Mastro, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief.
Thomas J. Mastro
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 Board of Governors of the Federal Reserve System and is true and correct.
Thomas A. Reyni \ Gerald L. Hassell ] Directors Alan R. Griffith / |