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EXHIBIT 4(a)
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AMOCO COMPANY
(As Issuer)
AND
AMOCO CORPORATION
(As Guarantor)
AND
THE CHASE MANHATTAN BANK
(As Trustee)
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INDENTURE
Dated as of August 1, 1997
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PROVIDING FOR ISSUANCE OF
GUARANTEED DEBT SECURITIES IN SERIES
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CERTAIN SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310 THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
sec. 310 (a)(1) ............................................................ 609
(a)(2) ............................................................ 609
(a)(3) ............................................................ Not Applicable
(a)(4) ............................................................ Not Applicable
(b) ............................................................ 608
610
sec. 311 (a) ............................................................ 613
(b) ............................................................ 613
sec. 312 (a) ............................................................ 701
702
(b) ............................................................ 702
(c) ............................................................ 702
sec. 313 (a) ............................................................ 703
(b) ............................................................ 703
(c) ............................................................ 703
(d) ............................................................ 703
sec. 314 (a) ............................................................ 704
(a)(4) ............................................................ 101
1004
(b) ............................................................ Not Applicable
(c)(1) ............................................................ 102
(c)(2) ............................................................ 102
(c)(3) ............................................................ Not Applicable
(d) ............................................................ Not Applicable
(e) ............................................................ 102
sec. 315 (a) ............................................................ 601
(b) ............................................................ 602
(c) ............................................................ 601
(d) ............................................................ 601
(e) ............................................................ 514
sec. 316 (a) ............................................................ 101
(a)(1)(A) ............................................................ 502
512
(a)(1)(B) ............................................................ 513
(a)(2) ............................................................ Not Applicable
(b) ............................................................ 508
(c) ............................................................ 104
sec. 317 (a)(1) ............................................................ 503
(a)(2) ............................................................ 504
(b) ............................................................ 1003
sec. 318 (a) ............................................................ 107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
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PAGE
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PARTIES................................................................................. 1
RECITALS OF THE COMPANY AND THE GUARANTOR............................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions............................................................ 1
Act.................................................................... 1
Additional Amounts..................................................... 1
Affiliate; control..................................................... 2
Authenticating Agent................................................... 2
Authorized Newspaper................................................... 2
Bearer Security........................................................ 2
Board of Directors..................................................... 2
Board Resolution....................................................... 2
Business Day........................................................... 2
Certification Date..................................................... 2
Commission............................................................. 2
Common Depositary...................................................... 2
Company................................................................ 2
Company Request; Company Order; Guarantor Request; Guarantor Order..... 2
Consolidated Adjusted Net Assets....................................... 2
Corporate Trust Office................................................. 3
Corporation............................................................ 3
Coupon................................................................. 3
Covenant Defeasance.................................................... 3
Debt................................................................... 3
Defaulted Interest..................................................... 3
Defeasance............................................................. 3
Depositary............................................................. 3
Euroclear.............................................................. 3
Event of Default....................................................... 3
Exchange Act........................................................... 3
Exchange Date.......................................................... 3
Expiration Date........................................................ 3
Global Registered Security............................................. 3
Government Obligation.................................................. 3
Guarantee.............................................................. 3
Guarantor.............................................................. 3
Holder................................................................. 3
Indenture.............................................................. 3
Interest............................................................... 3
Interest Payment Date.................................................. 3
Maturity............................................................... 4
Mortgage............................................................... 4
Notice of Default...................................................... 4
Officers' Certificate.................................................. 4
Opinion of Counsel..................................................... 4
Original Issue Discount Security....................................... 4
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PAGE
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Outstanding............................................................ 4
Paying Agent........................................................... 5
Person................................................................. 5
Place of Payment....................................................... 5
Predecessor Security................................................... 5
Producing Property..................................................... 5
Redemption Date........................................................ 5
Redemption Price....................................................... 5
Refining or Manufacturing Property..................................... 5
Registered Security.................................................... 5
Regular Record Date.................................................... 5
Responsible Officer.................................................... 5
Restricted Subsidiary.................................................. 6
Sale and Lease-Back Transaction........................................ 6
Securities............................................................. 6
Securities Act......................................................... 6
Security Register and Security Registrar............................... 6
Special Record Date.................................................... 6
Stated Maturity........................................................ 6
Subsidiary............................................................. 6
Trust Indenture Act.................................................... 6
Trustee................................................................ 6
United States.......................................................... 7
Vice President......................................................... 7
Yield to Maturity...................................................... 7
SECTION 102. Compliance Certificates and Opinions................................... 7
SECTION 103. Form of Documents Delivered to Trustee................................. 7
SECTION 104. Acts of Holders; Record Dates.......................................... 8
SECTION 105. Notices, Etc., to Trustee, Company and Guarantor....................... 10
SECTION 106. Notice to Holders of Securities; Waiver; Language of Notices, Etc...... 10
SECTION 107. Conflict with Trust Indenture Act...................................... 11
SECTION 108. Effect of Headings and Table of Contents............................... 11
SECTION 109. Successors and Assigns................................................. 11
SECTION 110. Separability Clause.................................................... 11
SECTION 111. Benefits of Indenture.................................................. 11
SECTION 112. Governing Law.......................................................... 11
SECTION 113. Legal Holidays......................................................... 11
ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES
SECTION 201. Forms Generally........................................................ 12
SECTION 202. Form of Face of Registered Security.................................... 12
SECTION 203. Form of Reverse of Registered Security................................. 13
SECTION 204. Form of Legend for Global Registered Securities........................ 16
SECTION 205. Form of Trustee's Certificate of Authentication........................ 17
SECTION 206. Form of Guarantees..................................................... 17
SECTION 207. Securities in Global Form.............................................. 19
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PAGE
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................... 20
SECTION 302. Denominations.......................................................... 22
SECTION 303. Execution, Authentication, Delivery and Dating......................... 22
SECTION 304. Temporary Securities................................................... 24
SECTION 305. Registration, Registration of Transfer and Exchange.................... 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons........... 29
SECTION 307. Payment of Interest; Interest Rights Preserved......................... 29
SECTION 308. Persons Deemed Owners.................................................. 30
SECTION 309. Cancellation........................................................... 30
SECTION 310. Computation of Interest................................................ 31
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture................................ 31
SECTION 402. Application of Trust Money............................................. 32
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default...................................................... 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment..................... 33
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........ 34
SECTION 504. Trustee May File Proofs of Claim....................................... 35
SECTION 505. Trustee May Enforce Claims Without Possession of Securities............ 35
SECTION 506. Application of Money Collected......................................... 35
SECTION 507. Limitation on Suits.................................................... 36
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest............................................................. 36
SECTION 509. Restoration of Rights and Remedies..................................... 36
SECTION 510. Rights and Remedies Cumulative......................................... 36
SECTION 511. Delay or Omission Not Waiver........................................... 37
SECTION 512. Control by Holders..................................................... 37
SECTION 513. Waiver of Past Defaults................................................ 37
SECTION 514. Undertaking for Costs.................................................. 38
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ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities......................... 38
SECTION 602. Notice of Defaults.......................................... 38
SECTION 603. Certain Rights of Trustee................................... 38
SECTION 604. Not Responsible for Recitals or Issuance of Securities...... 39
SECTION 605. May Hold Securities......................................... 39
SECTION 606. Money Held in Trust......................................... 39
SECTION 607. Compensation and Reimbursement.............................. 39
SECTION 608. Conflicting Interests....................................... 40
SECTION 609. Corporate Trustee Required; Eligibility..................... 40
SECTION 610. Resignation and Removal; Appointment of Successor........... 40
SECTION 611. Acceptance of Appointment by Successor...................... 41
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.................................................. 42
SECTION 613. Preferential Collection of Claims Against Company........... 42
SECTION 614. Appointment of Authenticating Agent......................... 42
ARTICLE SEVEN
HOLDERS'S LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701. Company and Guarantor to Furnish Trustee Names and Addresses
of Holders................................................ 43
SECTION 702. Preservation of Information; Communications to Holders...... 44
SECTION 703. Reports by Trustee.......................................... 44
SECTION 704. Reports by Company and Guarantor............................ 44
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Merger, Consolidation or Sale of Assets by the Company...... 44
SECTION 802. Successor Corporation to the Company........................ 45
SECTION 803. Merger, Consolidation or Sale of Assets by the Guarantor.... 46
SECTION 804. Successor Corporation to the Guarantor...................... 46
SECTION 805. Opinion of Counsel to Be Given Trustee...................... 47
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.......... 47
SECTION 902. Supplemental Indentures With Consent of Holders............. 48
SECTION 903. Execution of Supplemental Indentures........................ 49
SECTION 904. Effect of Supplemental Indentures........................... 49
SECTION 905. Conformity with Trust Indenture Act......................... 49
SECTION 906. Reference in Securities to Supplemental Indentures.......... 49
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, Interest, and Additional
Amounts................................................... 50
SECTION 1002. Maintenance of Office or Agency............................. 50
SECTION 1003. Provisions as to Paying Agent; Money for Securities Payments
to Be Held in Trust; Return of Unclaimed Moneys........... 51
SECTION 1004. Statement by Officers as to Default......................... 52
SECTION 1005. Limitation on Liens......................................... 52
SECTION 1006. Limitation on Sale and Lease-Back Transactions.............. 54
SECTION 1007. Additional Amounts.......................................... 55
SECTION 1008. Waiver of Certain Covenants................................. 55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.................................... 55
SECTION 1102. Election to Redeem; Notice to Trustee....................... 56
SECTION 1103. Selection by Trustee of Securities to Be Redeemed........... 56
SECTION 1104. Notice of Redemption........................................ 56
SECTION 1105. Deposit of Redemption Price................................. 57
SECTION 1106. Securities Payable on Redemption Date....................... 57
SECTION 1107. Securities Redeemed in Part................................. 58
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.................................... 58
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities....... 58
SECTION 1203. Redemption of Securities for Sinking Fund................... 59
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant
Defeasance................................................ 59
SECTION 1302. Defeasance and Discharge.................................... 59
SECTION 1303. Covenant Defeasance......................................... 59
SECTION 1304. Conditions to Defeasance or Covenant Defeasance............. 60
SECTION 1305. Deposited Money and Government Obligations to Be Held in
Trust;
Miscellaneous Provisions.................................. 61
SECTION 1306. Reinstatement............................................... 62
ARTICLE FOURTEEN
GUARANTEES
SECTION 1401. Guarantee................................................... 62
SECTION 1402. Execution and Delivery of Guarantees........................ 63
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ARTICLE FIFTEEN
MEETING OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called................... 63
SECTION 1502. Call, Notice and Place of Meetings.......................... 64
SECTION 1503. Persons Entitled to Vote at Meetings........................ 64
SECTION 1504. Quorum; Action.............................................. 64
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.................................................. 65
SECTION 1506. Counting Votes and Recording Action of Meetings............. 66
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1601. Indenture and Securities Solely Corporate Obligations....... 66
TESTIMONIUM.................................................................. 67
SIGNATURES AND SEALS......................................................... 67
ACKNOWLEDGEMENTS............................................................. 68
Exhibit A - Form of Certification from Beneficial Owner of Bearer Security... A-1
Exhibit B - Form of Certification from Euroclear and Cedel Bank ............. B-1
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE, dated as of August 1, 1997, among AMOCO COMPANY, a corporation
duly organized and existing under the laws of the State of Delaware (herein
called the "Company"), having its principal office at 200 East Randolph Drive,
Chicago, Illinois 60601, AMOCO CORPORATION, a corporation duly organized and
existing under the laws of the State of Indiana (herein called the "Guarantor"),
having its principal office at 200 East Randolph Drive, Chicago, Illinois 60601,
and THE CHASE MANHATTAN BANK, a banking corporation duly organized and existing
under the laws of the State of New York, as Trustee (herein called the
"Trustee") having its principal corporate trust office at 450 West 33rd Street,
New York, New York 10001.
RECITALS OF THE COMPANY AND THE GUARANTOR
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
The Guarantor has duly authorized the execution and delivery of this
Indenture to provide for the Guarantees by it with respect to the Securities as
set forth in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified in
Section 104.
"Additional Amounts" has the meaning specified in Section 1007.
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"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 614 to act on behalf of the Trustee to authenticate Securities of one
or more series.
"Authorized Newspaper" means a newspaper, in the English language or in an
official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of
general circulation in the place in connection with which the term is used or in
the financial community of such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may be
made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors", when used with reference to the Company, means the
board of directors or any duly authorized committee of such board and when used
with reference to the Guarantor, means the board of directors, the Executive
Committee of such board or any other duly authorized committee of such board.
"Board Resolution", when used with reference to the Company or the
Guarantor, means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company or the Guarantor, as the case may be, to have
been duly adopted by its respective Board of Directors (or any committee
included within the definition of such term) and to be in full force and effect
on the date of such certification.
"Business Day", when used with respect to any Place of Payment or other
place, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or such other place,
as the case may be, are generally authorized or obligated by law or executive
order to close.
"Certification Date" means with respect to any Securities of a series the
earlier of (A) the Exchange Date with respect to such Securities, and (B) if the
first Interest Payment Date with respect to such Securities is prior to such
Exchange Date, such Interest Payment Date.
"Commission" means the Securities and Exchange Commission, from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this instrument such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" or "Company Order" and "Guarantor Request" or "Guarantor
Order" means a written request or order signed in the name of the Company or the
Guarantor, as the case may be, by (i) with respect to the Company, the President
or any Vice President and by the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Assistant Secretary of the Company, and (ii)
with respect to the Guarantor, the Chairman of the Board, the Vice Chairman of
the Board, the President or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, any Assistant Controller, the Secretary or
any Assistant Secretary of the Guarantor, and delivered to the Trustee.
"Consolidated Adjusted Net Assets" means total assets of the Company and
its consolidated subsidiaries less (i) their total prepaid and deferred charges
and (ii) their total current liabilities (excluding any portion thereof which
may by its terms be extended or renewed at the option of the obligor thereon to
a time more
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than 12 months after the time as of which the amount thereof is being computed)
all as included in the latest annual audited consolidated balance sheet of the
Guarantor.
"Corporate Trust Office" means the principal office of the Trustee in The
City of New York at which at any particular time its corporate trust business
shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Covenant Defeasance" has the meaning specified in Section 1303.
"Debt" means any indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Registered Securities of any series
issuable in whole or in part in the form of one or more Global Registered
Securities, a clearing agency registered under the Exchange Act that is
designated to act as Depositary for such Registered Securities as contemplated
by Section 301.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Date" has the meaning specified in Section 304.
"Expiration Date" has the meaning specified in Section 104.
"Global Registered Security" means a Registered Security that evidences all
or part of the Registered Securities of any series and bears the legend set
forth in Section 204 (or such legend as may be specified as contemplated by
Section 301 for such Securities).
"Government Obligation" has the meaning specified in Section 1304.
"Guarantee" means any guarantee of a Security by the Guarantor endorsed on
a Security authenticated and delivered pursuant to this Indenture and shall
include the Guarantee set forth in Section 1401.
"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder", when used with respect to any Security, means in the case of a
Registered Security, the Person in whose name the Security (including the
Guarantee endorsed thereon) is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, means the bearer thereof.
"Indenture" means this instrument as originally executed and 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, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively. The term
"Indenture" shall also include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date", when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
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"Maturity", when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, security interest or lien.
"Notice of Default" means a written notice of the kind specified in Section
501(4).
"Officers' Certificate", (i) when used with respect to the Company, means a
certificate signed by the President or any Vice President and by the Treasurer,
any Assistant Treasurer, the Controller, the Secretary or any Assistant
Secretary of the Company, and (ii) when used with respect to the Guarantor,
means a certificate signed by the Chairman of the Board, the Vice Chairman of
the Board, the President or any Vice President and by the Treasurer, any
Assistant Treasurer, the Controller, any Assistant Controller, the Secretary or
any Assistant Secretary of the Guarantor, and delivered to the Trustee; except,
however, with respect to Section 1004, the officer signing an Officer's
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company or the Guarantor, as the case may
be.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or of counsel to the Company or the Guarantor, as the case may be,
or may be other counsel.
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company or the Guarantor) in
trust or set aside and segregated in trust by the Company or the Guarantor
(if the Company or the Guarantor, as the case may be, shall act as a Paying
Agent) for the Holders of such Securities; provided that, if such
Securities, or portions thereof, 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;
(3) Securities as to which Defeasance has been effected pursuant to
Section 1302; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, or whether a quorum is present at a meeting of
Holders of Securities, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502, (B)
if, as of such date, the principal amount payable at the Stated Maturity of a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as of such date in
the manner provided as contemplated by Section 301, of the principal amount of
such Security (or, in the case of a Security described in Clause (A) or (B)
above, of the amount determined as provided in such Clause), and (D) Securities
owned by the Company, the Guarantor or any other obligor
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upon the Securities or any Affiliate of the Company, the Guarantor or such other
obligor shall be disregarded and deemed not to be Outstanding for purposes of
such determination, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent, waiver or other action, or upon any such determination as to
the presence of a quorum, only Securities which the Trustee knows to be so owned
shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding for purposes of such determination if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Securities and that the pledgee is not the Company, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
Company, the Guarantor or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the Corporate Trust Office or such other place or places where, subject to
the provisions of Section 1002, the principal of and any premium and interest on
the Securities of that series are payable as specified as contemplated by
Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security, or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains, shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains, as the case may be.
"Producing Property" means any property interest of the Company or any
Restricted Subsidiary in land located within the United States of America
considered by the Company or Restricted Subsidiary, as the case may be, to be
productive of crude oil, natural gas or other petroleum hydrocarbons in paying
quantities.
"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,
in whole or in part, means the price at which it is to be redeemed pursuant to
this Indenture.
"Refining or Manufacturing Property" means any refining or manufacturing
property of the Company or any Restricted Subsidiary which is located within the
United States of America, other than any such property or portion thereof which
(a) in the opinion of the Board of Directors of the Company is not of material
importance to the business of the Company and its consolidated subsidiaries as a
whole, (b) is classified by the corporation which owns it as a transportation or
marketing facility or (c) is owned directly or indirectly by the Company or one
or more of its Subsidiaries or by the Company and one or more of its
Subsidiaries jointly or in common with others and the aggregate interest therein
of the Company and its Subsidiaries does not equal at least 50%.
"Registered Security" means any Security in the form established pursuant
to Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Registered Securities of any series means the date specified for that
purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a
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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:
(1) each of the following corporations so long as the major portion of
its assets is located within the territorial limits of the United States of
America and its territorial possessions: Amoco Oil Company (a Maryland
corporation), Amoco Production Company (a Delaware corporation) and Amoco
Chemical Company (a Delaware corporation); and
(2) any other corporation (A) substantially all the assets of which
are located within the territorial limits of the United States of America
and its territorial possessions, (B) which has total assets in excess of
three percent (3%) of the total consolidated assets of the Company and its
consolidated subsidiaries, as included in the latest annual audited
consolidated balance sheet of the Guarantor, and (C) of which at least
eighty percent (80%) of the outstanding stock having by the terms thereof
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether or not at the time stock of any other
class or classes of such corporation shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by the Company;
provided, however, that the term "Restricted Subsidiary" shall not mean any
corporation (i) the principal operating properties of which consist of oil or
gas pipeline properties, (ii) the principal assets of which are stock or
indebtedness of corporations which conduct substantially all of their business
outside the territorial limits of the United States of America and its
territorial possessions or (iii) principally engaged in financing receivables,
making loans, extending credit or other activities of a character conducted by a
credit or acceptance company.
"Sale and Lease-Back Transaction" has the meaning specified in Section
1006.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of any series means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or in a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries of the Company or by the Company and one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting stock"
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time
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there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"United States" means the United States of America, its territories and
possessions, including the Commonwealth of Puerto Rico, and all areas subject to
its jurisdiction.
"Vice President", when used with respect to the Company, 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".
"Yield to Maturity" means the yield to maturity, calculated at the time of
issuance of a series of Securities or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor, as the
case may be, to the Trustee to take any action under any provision of this
Indenture, the Company or the Guarantor, as the case may be, shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company or the
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements set
forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 1004) shall include,
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(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 other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company 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 the Company or the
Guarantor stating that the information with respect to such factual matters is
in the possession of the Company or the Guarantor, unless such counsel knows, or
in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. If Securities of a series are issuable as Bearer
Securities, any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders of such series may, alternatively, be embodied in and
evidenced by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company or the Guarantor or both. Such instrument or instruments and any
record (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments and so voting at any such meeting. Proof of execution of any such
instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 601) conclusive in favor of the Trustee, the Company and the
Guarantor, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to
give, make or take any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given, made or taken by Holders of Securities of such series, provided that the
Company may not set a record date for, and the provisions of this paragraph
shall not apply with respect to, the giving or making of any notice,
declaration, request or direction referred to in the next paragraph. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of the relevant series on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities of such
series on such record date. Nothing in this paragraph shall be construed to
prevent the Company from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities of the relevant series on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Securities of the relevant series in
the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of determining
the Holders of Outstanding Securities of any series entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 502, (iii) any request to institute
proceedings referred to in
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Section 507(2) or (iv) any direction referred to in Section 512, in each case
with respect to Securities of such series (or all series, as the case may be).
If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series (or all series, as the case may be) on such record
date, and no other Holders, shall be entitled to join in such notice,
declaration, request or direction, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series (or
all series, as the case may be) on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any
action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and with
no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action taken by Holders
of the requisite principal amount of Outstanding Securities of the relevant
series on the date such action is taken. Promptly after any record date is set
pursuant to this paragraph, the Trustee, at the Company's expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(d) The ownership of Registered Securities shall be proved by the Security
Register.
The principal amount and serial numbers of Bearer Securities held by any
Person, and the date of holding the same, may be proved by the production of
such Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or the
Guarantor in reliance thereon, whether or not notation of such action is made
upon such Security.
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SECTION 105. Notices, Etc., to Trustee, Company and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Vice President, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid,
addressed, in the case of the Company, to it at the address of its
principal office specified in the first paragraph of this instrument, to
the attention of its Treasurer (or at any other address previously
furnished in writing to the Trustee by the Company), with a copy to the
Guarantor (to the attention of its Treasurer), and addressed, in the case
of the Guarantor, to its principal office specified in the first paragraph
of this instrument, to the attention of its Treasurer (or at any other
address previously furnished in writing to the Trustee by the Guarantor).
SECTION 106. Notice to Holders of Securities; Waiver; Language of Notices, Etc.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of Registered
Securities if in writing and mailed, first-class postage prepaid, to each
Holder of a Registered Security affected by such event, at the address of
such Holder as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice; and
(2) such notice shall be sufficiently given to Holders of Bearer
Securities affected by such event if published on a Business Day in an
Authorized Newspaper in The City of New York and in London, England and if
the Securities of such series are then listed on the Luxembourg Stock
Exchange, in Luxembourg, and if the Securities of such series are then
listed on any other stock exchange outside the United States and such stock
exchange shall so require, in any other required city outside the United
States, and in such other city or cities as may be specified in such
Securities and, in the case of a Security in temporary global or permanent
global form, if delivered to Euroclear and Cedel Bank for communication by
them to the Persons shown in their records as having interests therein;
such notice shall be given at least twice, the first such publication to be
not earlier than the earliest date (if any), and not later than the latest
date (if any), prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice to Holders of
Registered Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case where notice to Holders of Registered Securities
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Notices to Holders given by mail will be deemed to
have been validly given on the fourth Business Day after the date of such
mailing.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities shall be published
as provided above in an Authorized Newspaper of general circulation in Europe,
or, if such publication shall also be impracticable, such notification shall be
given in such manner as shall be approved by the Trustee. Any such notification
shall constitute sufficient notice to such Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of any notice to Holders of Registered Securities given
as provided herein.
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Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Any request, demand, authorization, direction, notice, consent, waiver or
other action required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the provision of the Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any provision of the
Trust Indenture Act which may be so modified or excluded, such provision of the
Trust Indenture Act shall be deemed to apply to this Indenture as so modified or
to be excluded, as the case may be.
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 the Company and the
Guarantor shall bind its respective successors and assigns, whether so expressed
or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture, the Securities or coupons or the
Guarantees shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture, the Securities or coupons or the Guarantees,
express or implied, shall give to any Person, other than the parties hereto and
their successors hereunder and the Holders of Securities or coupons, any benefit
or any legal or equitable right, remedy or claim under this Indenture, the
Securities, coupons or Guarantees.
SECTION 112. Governing Law.
This Indenture, the Securities and coupons and the Guarantees shall be
governed by and construed in accordance with the law of the State of New York.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture, the Securities or
coupons or the Guarantees (other than a provision of any Security or coupon
which specifically states that such provision shall apply in lieu of this
Section)) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity.
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ARTICLE TWO
FORMS OF SECURITIES AND GUARANTEES
SECTION 201. Forms Generally.
The Registered Securities, if any, of each series shall be in substantially
the form set forth in this Article, or such other form as shall be established
by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, and the Bearer Securities, if any, of each series and related coupons,
if any, shall be in substantially such form (including temporary or permanent
global form) as shall be established by or pursuant to a Board Resolution or in
one or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with applicable law or the rules of any securities exchange
or Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities or coupons as evidenced by their execution of
the Securities or coupons. If temporary Securities of any series are issued in
global form as permitted by Section 304, the form thereof shall be established
as provided in the preceding sentence. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Face of Registered Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
AMOCO COMPANY
[TITLE OF SECURITY]
Payment of Principal[, Premium, if any,]
[and Interest, if any,] Guaranteed by
AMOCO CORPORATION
No ............... $.............
AMOCO COMPANY, a corporation duly organized and existing under the laws of
Delaware (herein called the "Company", which term includes any successor Person
under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ................................., or registered assigns, the
principal sum of .......................... Dollars on
............................... ......... [if the Security is to bear interest
prior to Maturity, insert -- , and to pay interest thereon from ... ...... or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on ........ and ........ in each year,
commencing ........, at the rate of ...% per annum, until the principal hereof
is paid or made available for payment [if applicable, insert -- , provided that
any principal and premium, and any such installment of interest, which is
overdue shall bear interest at the rate of ...% per annum (to the extent that
the payment of such interest shall be legally enforceable), from the dates such
amounts are due until they are paid or made available for payment, and such
interest shall be payable on demand]. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the .... or .... (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name
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this Security (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
Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal and any overdue premium shall
bear interest at the rate of ...% per annum (to the extent that the payment of
such interest shall be legally enforceable), from the dates such amounts are due
until they are paid or made available for payment. Interest on any overdue
principal or premium shall be payable on demand. [Any such interest on overdue
principal or premium which is not paid on demand shall bear interest at the rate
of ...% per annum (to the extent that the payment of such interest on interest
shall be legally enforceable), from the date of such demand until the amount so
demanded is paid or made available for payment. Interest on any overdue interest
shall be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ........, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest may be
made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, neither this
Security nor the Guarantee endorsed hereon shall be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
AMOCO COMPANY
By ...................................
Attest:
...............................
SECTION 203. Form of Reverse of Registered Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of August , 1997 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), among the Company, Amoco Corporation, a corporation duly organized
and existing under the laws of the State of Indiana (herein called the
"Guarantor", which term includes any successor Person under such Indenture), and
The Chase Manhattan Bank, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), and reference is hereby
made to the Indenture for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the Guarantor, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and
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delivered. This Security is one of the series designated on the face hereof [if
applicable, insert -- , limited in aggregate principal amount to $........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ........ in any year commencing with the year .... and ending with the
year .... through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after .........., 19...], as a whole or in part, at
the election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [if applicable, insert -- on
or before .........., ...%, and if redeemed] during the 12-month period
beginning .......... of the years indicated,
REDEMPTION REDEMPTION
YEAR PRICE YEAR PRICE
- ----- ---------- ---- ----------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ............ in
any year commencing with the year ....... and ending with the year .......
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ............], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning .... of the years indicated,
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
- ---------------------------------------------------- ----------------- ----------------------
and thereafter at a Redemption Price equal to ....% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- Notwithstanding the foregoing, the Company may
not, prior to .........., redeem any Securities of this series as contemplated
by [if applicable, insert -- Clause (2) of] the preceding
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paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than ....% per annum.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on ......... in each year beginning with the year ...... and ending
with the year .... of [if applicable, insert -- not less than $........
("mandatory sinking fund") and not more than] $....... aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert --
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert -- mandatory] sinking fund payments otherwise required to be
made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth in the Indenture.
[If the Security is not an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company, the Guarantor and the rights of the Holders of the Securities of each
series to be affected under the Indenture at any time by the Company, the
Guarantor and the Trustee with the consent of the Holders of 66 2/3% in
principal amount of the Securities at the time Outstanding of each series to be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series (or
all series, as the case may be) at the time Outstanding, on behalf of the
Holders of all Securities of such series (or all series, as the case may be), to
waive compliance by the Company and the Guarantor with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security 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 Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series (or all series, as the case may be) at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series (or all
series, as the case may be) at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not
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apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ . . . . . . and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor
or the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
This Security shall be governed by and construed in accordance with the
laws of the State of New York.
No recourse for the payment of the principal of, premium, if any, or
interest, if any, on this Security, or for any claim based hereon or otherwise
in respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or in any supplemental indenture, or
in this Security, or because of the creation of any indebtedness represented
hereby, shall be had against any incorporator, shareholder, officer or director,
as such, past, present or future, of the Company or of any successor corporation
thereof, either directly or through the Company or any successor of the Company
in the Indenture or in any supplemental indenture, or in this Security, whether
by virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly understood that all
such liability is hereby expressly waived and released as a condition of, and as
a consideration for, the execution of the Indenture and the issue of this
Security.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
SECTION 204. Form of Legend for Global Registered Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Registered Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON
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OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 205. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
As Trustee
By ..........................................
Authorized Officer
SECTION 206. Form of Guarantees.
The Guarantees to be endorsed on the Securities of each series shall be in
substantially the form set forth in this Section, or in such other form (subject
to the provisions set forth in Section 1402) as shall be established by or
pursuant to a Board Resolution of the Guarantor or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with any law or with any rule or regulation made pursuant thereto or with the
rules of any securities exchange or to conform to general usage or as may,
consistently herewith, be determined by the officers executing such Guarantees,
as evidenced by their execution of such Guarantees. If the form of Guarantee
with respect to the Securities of any series is established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Guarantor
and delivered to the Trustee at or prior to the delivery of the related Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Guarantees to be endorsed on the definitive Securities of any series
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Guarantees, as evidenced by their execution of such Guarantees.
The Guarantees to be endorsed on the Securities shall, subject to the first
paragraph of this Section, be in substantially the following form:
GUARANTEE
For value received, AMOCO CORPORATION, a company organized under the
laws of Indiana (herein called the "Guarantor", which term includes any
successor corporation under the Indenture referred to in the Security upon
which this Guarantee is endorsed), hereby unconditionally guarantees to the
Holder of the Security upon which this Guarantee is endorsed, [if
applicable, insert -- and to each Holder of any coupon appertaining
thereto,] the due and punctual payment of the principal of (and premium, if
any) and interest, if any, on such Security [if applicable, insert --
(including all Additional Amounts payable by the Company in respect thereof
pursuant to such Security and any coupon appertaining thereto)], any other
amount due and payable pursuant to the terms of the Indenture and the due
and punctual payment of the sinking fund or analogous payments referred to
therein, if any, when and
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as the same shall become due and payable, whether at the Stated Maturity,
by declaration of acceleration, call for redemption or otherwise, according
to the terms thereof and of the Indenture referred to therein. In case of
the failure of the Company punctually to make any such payment, the
Guarantor hereby agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration or otherwise, and as if such
payment were made by the Company [if applicable, insert -- , and to pay any
and all Additional Amounts payable in respect thereof pursuant to such
Security and any coupon appertaining thereto and Section 1007 of such
Indenture].
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability
of such Security [if applicable, insert -- or coupon] or the Indenture, the
absence of any action to enforce the same, any waiver or consent by the
Holder of such Security [if applicable, insert -- or coupon] or the Trustee
or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company or any action
to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of a guarantor. The
Guarantor hereby waives the benefits of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security [if
applicable, insert -- or coupon] or the indebtedness evidenced thereby or
with respect to any sinking fund payment required pursuant to the terms of
such Security and all demands whatsoever, and covenants that this Guarantee
will not be discharged except by payment in full of the principal of (and
premium, if any) and interest, if any, on such Security [if applicable,
insert -- or coupon (including all Additional Amounts payable in respect
thereof pursuant to such Security and any coupon appertaining thereto)].
The Guarantor hereby agrees that, in the event of a default in payment of
principal (or premium, if any) or interest, if any, on such Security, or a
default in any sinking fund or analogous payment referred to therein, legal
proceedings may be instituted by the Trustee on behalf of, or by, the
Holder of such Security [if applicable, insert -- or coupon], on the terms
and conditions set forth in the Indenture, directly against the Guarantor
to enforce this Guarantee without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holder of the
Security upon which this Guarantee is endorsed [if applicable, insert --
and of any coupon appertaining thereto] against the Company in respect of
any amounts paid by the Guarantor on account of such Security [if
applicable, insert -- or coupon] pursuant to the provisions of this
Guarantee or the Indenture; provided, however, that the Guarantor shall not
be entitled to enforce or to receive any payments arising out of, or based
upon, such right of subrogation until the principal of (and premium, if
any) and interest, if any, on such Security and all other Securities of the
same series [if applicable, insert -- and coupons appertaining thereto]
issued under the Indenture [if applicable, insert -- (including all
Additional Amounts payable in respect thereof)] shall have been paid in
full.
All terms used in this Guarantee which are defined in the Indenture
referred to in the Security upon which this Guarantee is endorsed shall
have the meanings assigned to them in such Indenture.
[If applicable, insert -- All references in this Guarantee to
principal, premium or interest in respect of any Security or coupon
appertaining thereto shall be deemed to mean and include all Additional
Amounts, if any, payable in respect of such principal, premium or interest,
unless the context otherwise requires, and express mention of the payment
of Additional Amounts in any provision hereof shall not be construed as
excluding reference to Additional Amounts in those provisions hereof where
such express mention is not made.]
This Guarantee shall be governed by and construed in accordance with
the laws of the State of New York.
No recourse for the payment of the principal of, premium, if any, or
interest, if any, under this Guarantee, or for any claim based hereon or
otherwise in respect hereof, and no recourse under or upon any obligation,
covenant or agreement of the Guarantor in the Indenture or in any
supplemental indenture, or in this Guarantee, or because of the creation of
any indebtedness represented hereby, shall
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be had against any incorporator, shareholder, officer or director, as such,
past, present or future, of the Guarantor or of any successor corporation
thereof, either directly or through the Guarantor or any successor of the
Guarantor in the Indenture or in any supplemental indenture, whether by
virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood
that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of the Indenture
and the issue of the Security on which this Guarantee is endorsed.
This Guarantee shall not be valid or obligatory for any purpose until
the certificate of authentication on the Security upon which this Guarantee
is endorsed shall have been executed by the Trustee under the Indenture by
manual signature of one of its authorized officers.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be duly
executed under its corporate seal.
AMOCO CORPORATION
By: ..................................
Attest:
.............................
Each Guarantee shall be dated the date of the Security upon which it is
endorsed. Reference is made to Article Fourteen for further provisions with
respect to the Guarantees.
SECTION 207. Securities in Global Form.
If Securities of a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding the provisions of Section
302, any such Security shall represent such of the Outstanding Securities of
such series as shall be specified therein and may provide that it shall
represent the aggregate amount of Outstanding Securities from time to time
endorsed thereon and that the aggregate amount of Outstanding Securities
represented thereby may from time to time be reduced to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any increase
or decrease in the amount, of Outstanding Securities represented thereby shall
be made by the Trustee or an Authenticating Agent in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee or an Authenticating Agent
pursuant to Section 303 or Section 304. Subject to the provisions of Section 303
and, if applicable, Section 304, the Trustee or an Authenticating Agent, as the
case may be, shall deliver and redeliver any Security in permanent global form
in the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions
by the Company with respect to endorsement or delivery or redelivery of a
Security in global form shall be in writing but need not comply with Section 102
and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee or an
Authenticating Agent the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of this Section 207.
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Notwithstanding the provisions of Sections 201 and 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the
preceding paragraph, the Company, the Guarantor, the Trustee and any agent of
the Company, the Guarantor or the Trustee shall treat a Person as the Holder of
such principal amount of Outstanding Securities represented by a permanent
global Security as shall be specified in a written statement of the Holder of
such permanent global Security or, in the case of a permanent global Security in
bearer form, of Euroclear or Cedel Bank which is produced to the Trustee or such
agent by such Person.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution of the Company and by or
pursuant to a Board Resolution of the Guarantor and, subject to Section 303, set
forth, or determined in the manner provided, in Officers' Certificates of the
Company and the Guarantor, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(3) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, whether
any Securities of the series are to be issuable initially in temporary
global form, any date, or the manner of determination of any date, prior to
which interests in any such temporary global security may not be exchanged
for definitive Securities of such series and the extent to which and the
manner in which any interest on such temporary global security may be paid,
and whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series and of like tenor of any authorized
form and denomination and the circumstances under which any such exchanges
may occur, if other than in the manner provided in Section 305;
(4) (i) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close
of business on the Regular Record Date for such interest, (ii) the manner
in which, or the Person to whom, any interest on any Bearer Security of the
series shall be payable, if otherwise than upon presentation and surrender
of the coupons appertaining thereto as they severally mature, and (iii) the
extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if other
than in the manner provided in Section 304;
(5) the date or dates on which the principal of and premium, if any,
on any Securities of the series is payable;
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(6) the rate or rates at which any Securities of the series shall bear
interest, if any, or the manner of calculating such rate or rates, the date
or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record
Date for any such interest payable on any Registered Securities on any
Interest Payment Date;
(7) the place or places where, subject to the provisions of Section
1002, the principal of and any premium, interest and Additional Amounts on
any Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, any Securities
of the series may be surrendered for exchange and notices and demands to or
upon the Company and the Guarantor in respect of any Securities of the
series of this Indenture may be served;
(8) the period or periods within which, the price or prices at which
and the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Company and, if other
than by a Board Resolution, the manner in which any election by the Company
to redeem the Securities shall be evidenced;
(9) the obligation, if any, of the Company to redeem, purchase or
repay any Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligation;
(10) if other than denominations of U.S.$1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of
the series shall be issuable, and if other than denominations of U.S.$5,000
and any integral multiple thereof, the denominations in which any Bearer
Securities of the series shall be issuable;
(11) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be
determined;
(12) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and
the manner of determining the equivalent thereof in the currency of the
United States of America for any purpose, including for purposes of the
definition of "Outstanding" in Section 101;
(13) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other than that
or those in which such Securities are stated to be payable, the currency,
currencies or currency units in which the principal of or any premium or
interest on such Securities as to which such election is made shall be
payable, the periods within which and the terms and conditions upon which
such election is to be made and the amount so payable (or the manner in
which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of
the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more
dates prior to the Stated Maturity, the amount which shall be deemed to be
the principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or
which shall be deemed to be Outstanding as of any date prior to the Stated
Maturity (or, in any such case, the manner in which such amount deemed to
be the principal amount shall be determined);
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section
1303 or both such Sections and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities
shall be evidenced;
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(17) if applicable, that any Registered Securities of the series shall
be issuable in whole or in part in the form of one or more Global
Registered Securities and, in such case, the respective Depositaries for
such Global Registered Securities, the form of any legend or legends which
shall be borne by any such Global Registered Security in addition to or in
lieu of that set forth in Section 204 and any circumstances in addition to
or in lieu of those set forth in Clause (2) of the last paragraph of
Section 305 in which any such Global Registered Security may be exchanged
in whole or in part for Securities registered, and any transfer of such
Global Registered Security in whole or in part may be registered, in the
name or names of Persons other than the Depositary for such Global
Registered Security or a nominee thereof;
(18) whether any legends shall be stamped or imprinted on all or a
portion of the Securities of the series, and the terms and conditions upon
which any legends may be removed;
(19) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(20) the Guarantees of the Securities of such series pursuant to
Section 206;
(21) whether and under what circumstances the Company will pay
Additional Amounts on the Securities of the series and, if so, whether the
Company will have the option to redeem such Securities rather than pay such
Additional Amounts;
(22) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series;
(23) any other terms of the series (which terms shall not be
inconsistent in any material respect with the provisions of this Indenture,
except as permitted by Section 901(5)); and
(24) any trustees, authenticating or paying agents, warrant agents,
transfer agents, registrars or any other agents or depositaries with
respect to the Securities of the series.
All Securities (and Guarantees endorsed thereon) of any one series and the
coupons appertaining to any Bearer Securities of such series shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to the Board Resolution referred to above and (subject
to Section 303) set forth, or determined in the manner provided, in the
Officers' Certificate referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution of the Company and the Guarantor, respectively, a copy of
an appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and the Guarantor, respectively, and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
Unless otherwise provided as contemplated by Section 301 with respect to
any series of Securities, any Registered Securities of a series shall be
issuable in denominations of U.S.$1,000 and integral multiples thereof and any
Bearer Securities of a series shall be issuable in denominations of U.S.$5,000
and integral multiples thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile. Coupons shall bear the
facsimile signature of the Chairman of the Board, Vice Chairman of the Board,
President or one of the Vice Presidents of the Company.
Securities and coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of
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them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities,
and such Securities nevertheless may be authenticated and delivered or disposed
of as though the individual who signed such Securities had not ceased to be such
officer of the Company.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series, together with any
coupons appertaining thereto, executed by the Company and having Guarantees
endorsed thereon, to the Trustee for authentication, together with a Company
Order for the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such
Securities; provided, however, that, in connection with its sale during the
restricted period (as defined in U.S. Treasury Regulation
1.163-5(c)(2)(i)(D)(7)), no Bearer Security shall be mailed or otherwise
delivered to any location in the United States; and provided, further, that a
Bearer Security (other than a temporary global Security) shall not be delivered
to any Person (other than to Euroclear or Cedel Bank) entitled to delivery
thereof except upon delivery by such Person to the Company or its agent of a
certificate in the form set forth in Exhibit A to this Indenture, dated no
earlier than the Certification Date, and where the Person entitled to delivery
of such Bearer Security is Euroclear or Cedel Bank of a certificate in the form
set forth in Exhibit A and the delivery by Euroclear and Cedel Bank to the
Company or its agent of a certificate in the form set forth in Exhibit B. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be a delivery of
definitive Securities representing such beneficial owner's interests. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and cancelled. If the form or terms of the Securities of the
series and any related coupons or the Guarantees endorsed thereon have been
established by or pursuant to one or more Board Resolutions as permitted by
Sections 201, 206 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to Section 601) shall be
fully protected in relying upon, an Opinion of Counsel stating:
(a) if the forms of such Securities and any related coupons or of the
Guarantees endorsed thereon have been established by or pursuant to Board
Resolution as permitted by Section 201 or 206, that such forms have been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities and any related coupons have been
established by or pursuant to Board Resolution as permitted by Section 301,
or if terms of the Guarantees to be endorsed thereon have been established
by or pursuant to Board Resolution as permitted by Section 206, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons appertaining
thereto, when authenticated and delivered by the Trustee and issued by the
Company, and the Guarantees endorsed thereon, when delivered by the Trustee
and issued by the Guarantor, in each case in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company and the Guarantor, respectively,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
The Trustee shall have the right to decline to authenticate and deliver, any
Securities, with the Guarantees endorsed thereon, under this Section if the
Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Trustee in good faith by its board of directors or trustees,
executive committee, or a trust committee of directors or trustees or vice
presidents and/or Responsible Officers of the Trustee shall determine that such
action would expose the Trustee to personal liability.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificates otherwise
required pursuant to Section 301 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such
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documents are delivered at or prior to the authentication upon original issuance
of the first Security of such series to be issued.
Each Registered Security shall be dated the date of its authentication, and
unless otherwise provided in or with respect to the Securities of a series, each
Bearer Security shall be dated as of the date of original issuance of the first
Security of such series to be issued.
No Security or coupon or Guarantee shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security, or the Security to which such coupon appertains, a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 309, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities and having endorsed thereon Guarantees
substantially of the tenor of the definitive Guarantees in lieu of which they
are issued, in registered form or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities and such Guarantees may determine, as evidenced by their execution of
such Securities. In the case of any series issuable as Bearer Securities, such
temporary Securities may be in global form. A temporary Bearer Security shall be
delivered only in compliance with the conditions set forth in Section 303 and in
this Section 304.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series, with Guarantees endorsed thereon, to be prepared
without unreasonable delay. After the preparation of definitive Securities of
such series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series, with Guarantees endorsed thereon, upon
surrender of the temporary Securities of such series at the office or agency of
the Company maintained pursuant to Section 1002 in a Place of Payment for such
series for the purpose of exchanges of Securities of such series, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor one or more definitive Securities of the same
series, of any authorized denominations and of like tenor and aggregate
principal amount which have endorsed thereon the Guarantees; provided, however,
that no definitive Bearer Security shall be issued in exchange for a temporary
Registered Security; and provided further, however, that a definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303 and in this Section 304.
If temporary Securities of any series are issued in global form, any such
temporary global Security, with Guarantees endorsed thereon, shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Cedel Bank, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Subject to the conditions set forth in Section 303 and this Section 304,
without unnecessary delay but in any event not later than the date specified in,
or determined pursuant to the terms of, any such temporary global Security of a
series (the "Exchange Date"), the Company shall deliver to the Trustee or to an
Authenticating Agent definitive Securities, with Guarantees endorsed thereon, in
aggregate principal amount
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equal to the principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date such temporary global Security shall be
surrendered by the Common Depositary to the Trustee or the Authenticating Agent,
as the Company's agent for such purpose, to be exchanged, in whole or from time
to time in part, for definitive Securities of a series, with Guarantees endorsed
thereon, without charge and the Trustee or the Authenticating Agent shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, a like aggregate principal amount of definitive Securities of the same
series, with Guarantees endorsed thereon, of authorized denominations and of
like tenor as the portion of such temporary global Security to be exchanged;
provided, however, that, unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such temporary global
Security must be accompanied by a certificate dated the Exchange Date or a
subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate
dated the Exchange Date or a subsequent date and signed by Cedel Bank as to the
portion of such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit B to this Indenture. The
definitive Securities to be delivered in exchange for any such temporary global
Security shall have endorsed thereon the Guarantees and shall be in registered
form, permanent global bearer form or permanent global registered form, or any
combination thereof, as specified as contemplated by Section 301, and, if any
combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that definitive Securities, with Guarantees endorsed
thereon, shall be delivered in exchange for a portion of a temporary global
Security only in compliance with the requirements of Section 303 and this
Section 304.
Unless otherwise specified in the temporary global Security, the interest
of a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged on the Exchange Date for an interest in a permanent global
Security of the same series and of like tenor which have endorsed thereon the
Guarantees unless, on or prior to the Exchange Date, (i) such beneficial owner
has not delivered to Euroclear or Cedel Bank, as the case may be, a certificate
in the form set forth in Exhibit A to this Indenture dated no earlier than the
Certification Date, copies of which certificate shall be available from the
offices of Euroclear and Cedel Bank, the Trustee, and any Authenticating Agent
appointed for such series of Securities or (ii) Euroclear or Cedel Bank, as the
case may be, has not delivered to the Company or its agent a certificate
substantially in the form of Exhibit B. After the Exchange Date, the interest of
a beneficial owner of Securities of a series in a temporary global Security
shall be exchanged for an interest in a permanent global Security of the same
series and of like tenor, with Guarantees endorsed thereon, following such
beneficial owner's delivery to Euroclear or Cedel Bank, as the case may be, of a
certificate in the form set forth in Exhibit A to this Indenture dated no
earlier than the Certification Date, and the delivery by Euroclear or Cedel
Bank, as the case may be, to the Company or its agent of a certificate
substantially in the form of Exhibit B. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does not take delivery
of such definitive Securities in person at the offices of Euroclear or Cedel
Bank Definitive Securities in bearer form, with Guarantees endorsed thereon, to
be delivered in exchange for any portion of a temporary global Security shall be
delivered only outside the United States.
Until exchanged in full as hereinafter provided, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of the same series and of like tenor
authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 301, interest payable on a temporary global Security
on an Interest Payment Date for Securities of such series shall be payable to
Euroclear and Cedel Bank on such Interest Payment Date upon delivery by
Euroclear and Cedel Bank to the Trustee or an Authenticating Agent of a
certificate or certificates in the form set forth in Exhibit B to this
Indenture, for credit without further interest on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial owners of
such temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or Cedel Bank, as the case may be, a certificate in the
form set forth in Exhibit A to this Indenture. If such Interest Payment Date
occurs prior to the issuance of definitive Securities (including a permanent
global Security) with respect to the portion of the temporary global Security
that relates to such interest, Euroclear or Cedel Bank, as the case may be, upon
the receipt of such certificate or, if later, the Exchange Date, shall exchange,
in accordance with the procedures
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hereinabove provided, the portion of the temporary global Security that relates
to such certificate for definitive Securities (which, unless otherwise provided
in the temporary global Security, shall be a permanent global Security). Any
interest so received by Euroclear and Cedel Bank and not paid as herein provided
shall be returned to the Trustee immediately prior to the expiration of two
years after such Interest Payment Date in order to be repaid to the Company or
the Guarantor in accordance with Section 1003.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall keep, at the office or agency maintained pursuant to
Section 1002, or shall cause to be kept at the Corporate Trust Office of the
Trustee, a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and the registration of transfers of
Registered Securities. The Trustee is hereby appointed "Security Registrar" for
the purpose of registering Securities and transfers of Registered Securities as
herein provided.
Upon surrender for registration of transfer of any Registered Security of a
series at the office or agency of the Company maintained pursuant to Section
1002 for such purpose in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount, each such Security having endorsed thereon a Guarantee.
Except as otherwise provided in Section 303 or 304 or in a Company Order,
at the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, each such
Security having endorsed thereon a Guarantee, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, the Guarantor shall execute
its Guarantees endorsed thereon, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
Bearer Securities may not be issued in exchange for Registered Securities.
Except as otherwise provided in Section 303 or 304 or in a Company Order,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of like tenor and aggregate principal amount, each such Security having endorsed
thereon a Guarantee, upon surrender of the Bearer Securities to be exchanged at
any such office or agency, with all unmatured coupons and all matured coupons in
default thereto appertaining. If the Holder of a Bearer Security is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment in funds acceptable to the Company and the Guarantor in an amount
equal to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company, the Guarantor and
the Trustee (or such other agent of the Company or the Guarantor appointed for
such purpose) if there is furnished to them such security or indemnity as they
may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing
coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive the amount of such payment; provided, however,
that, except as otherwise provided in Section 1002, interest represented by
coupons shall be payable only upon presentation and surrender of those coupons
at an office or agency located outside the United States. No such check which is
mailed shall be mailed to an address in the United States, nor shall any
transfer made in lieu of a check be made to an account maintained by the payee
with a bank in the United States. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in
exchange for a Registered Security of the same series and like tenor, with the
Guarantee endorsed thereon, after the close of business at such office or agency
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered
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without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case may
be, will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of the Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, the Guarantor shall execute its Guarantee endorsed thereon, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interests for Securities
of such series, with Guarantees endorsed thereon, and like tenor and principal
amount of another authorized form and denomination, as specified as contemplated
by Section 301, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee or an Authenticating Agent definitive Securities of that
series, with Guarantees endorsed thereon, in aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee or an Authenticating Agent and the Common
Depositary (which instructions shall be in writing and need not comply with
Section 102 or be accompanied by an Opinion of Counsel) by the Common Depositary
or such other depositary or common depository as shall be specified in the
Company Order with respect thereto to the Trustee or an Authenticating Agent, as
the Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee or an
Authenticating Agent shall authenticate and deliver, in exchange for each
portion of such permanent global Security, a like aggregate principal amount of
definitive Securities of the same series, with Guarantees endorsed thereon, of
authorized denominations and of like tenor as the portion of such permanent
global Security to be exchanged which, unless the Securities of the series are
not issuable both as Bearer Securities and as Registered Securities, as
specified as contemplated by Section 301, shall be in the form of Bearer
Securities or Registered Securities, or any combination thereof, as shall be
specified by the beneficial owner thereof; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series to be redeemed and ending on
the relevant Redemption Date; and provided, further, that no Bearer Security
delivered in exchange for a portion of a permanent global Security shall be
mailed or otherwise delivered to any location in the United States. Promptly
following any such exchange in part, such permanent global Security shall be
returned by the Trustee or an Authenticating Agent, as the case may be, to the
Common Depositary or such other common depository referred to above in
accordance with the instructions referred to above. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the
close of business at the office or agency where such exchange occurs on (i) any
Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and
before the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
Notwithstanding anything in this Section 305 to the contrary, neither the
Company nor the Trustee (which shall be fully protected in relying on an
Officers' Certificate and an Opinion of Counsel) shall be required to exchange
any Bearer Security for a Registered Security if such exchange would result in
adverse United States Federal income tax consequences to the Company (including
the inability of the Company to deduct from its income, as computed for United
States Federal income tax purposes, the interest payable on any Securities)
under then applicable United States Federal income tax laws.
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All Securities and the Guarantees endorsed thereon issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantor, respectively, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
and the Guarantees endorsed thereon surrendered upon such registration of
transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Guarantor,
the Trustee or any transfer agent) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the Company, the
Guarantor and the Security Registrar or any transfer agent duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (i) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before any selection of Securities of that Series to be
redeemed and ending at the close of business on (A) if Securities of the series
are issuable only as Registered Securities, the day of the mailing of the
relevant notice of redemption and (B) if Securities of the series are issuable
as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if Securities of the series are also issuable as Registered
Securities and there is no publication, the mailing of the relevant notice of
redemption, or (ii) to register the transfer or exchange of any Registered
Security so selected for redemption, in whole or in part, except the unredeemed
portion of any Security being redeemed in part, or (iii) to exchange any Bearer
Security so selected for redemption except that such a Bearer Security may be
exchanged for a Registered Security of that series and like tenor, provided that
such Registered Security shall be simultaneously surrendered for redemption.
The provisions of Clauses (1), (2), (3) and (4) below shall apply only to
Global Registered Securities:
(1) Each Global Registered Security authenticated under this Indenture
shall be registered in the name of the Depositary designated for such
Global Registered Security or a nominee thereof and delivered to such
Depositary or a nominee thereof or custodian therefor, and each such Global
Registered Security shall constitute a single Security for all purposes of
this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Registered Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Registered Security in whole or in
part may be registered, in the name of any Person other than the Depositary
for such Global Registered Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company and the Guarantor that it is
unwilling or unable to continue as Depositary for such Global Registered
Security or (ii) has ceased to be a clearing agency registered under the
Exchange Act, (B) there shall have occurred and be continuing an Event of
Default with respect to such Global Registered Security or (C) there shall
exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Registered
Security for other Securities may be made in whole or in part, and all
Registered Securities issued in exchange for a Global Registered Security
or any portion thereof shall be registered in such names as the Depositary
for such Global Registered Security shall direct.
(4) Every Registered Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Section, Section
304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered in
the form of, and shall be, a Global Registered Security, unless such
Security is registered in the name of a Person other than the Depositary
for such Global Registered Security or a nominee thereof.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities and Coupons.
If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series and of like tenor and principal amount, having endorsed
thereon a Guarantee and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company, the Guarantor or the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon and (ii) such security or indemnity as may be required by
them to save each of them and any agent of any of them harmless, then, in the
absence of notice to the Company, the Guarantor or the Trustee that such
Security or coupon has been acquired by a bona fide purchaser, the Company shall
execute and the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount, having endorsed thereon a Guarantee and bearing a number
not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security or coupon; provided,
however, that principal of and any premium and interest on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States.
Upon the issuance of any new Security under this Section, the Company may
require 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 of any series, with its coupons, if any, issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen Security or
in exchange for a Security to which a mutilated, destroyed, lost or stolen
coupon appertains, and the Guarantee endorsed thereon, shall constitute an
original additional contractual obligation of the Company and the Guarantor,
whether or not the mutilated, destroyed, lost or stolen Security and its
coupons, if any, or the mutilated, destroyed, lost or stolen coupon shall be at
any time enforceable by anyone, and shall be entitled to all the benefits of
this Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with respect to
any series of Securities, interest on any Registered Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Registered Security of any series which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall
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be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount
of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be given to each Holder of Registered Securities of such series
in the manner set forth in Section 106, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of and any premium and (subject to Section 305
and Section 307) any interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Guarantor, the Trustee nor any agent of the Company, the Guarantor or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall
pass by delivery. The Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Security or
coupon for the purpose of receiving payment thereof or on account thereof and
for all other purposes whatsoever, whether or not such Security or coupon be
overdue, and neither the Company, the Guarantor, the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by notice to the
contrary.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption,
registration of transfer or exchange or for credit against any sinking fund
payment or analogous obligation shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
All Registered Securities and matured coupons so delivered shall be promptly
cancelled by the Trustee or such agent as shall be appointed for such purpose by
the Trustee (and each reference to this Section 309 shall be deemed to include
any such agent). All Bearer Securities and unmatured coupons so delivered shall
be cancelled by the Trustee. All Bearer Securities and unmatured coupons held by
the Trustee pending such cancellation shall be deemed
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to be delivered for cancellation for all purposes of this Indenture and the
Securities. The Company may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the
Company may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not
issued and sold, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee, and the Trustee shall deliver to the
Company a certificate of such destruction. If the Company or the Guarantor shall
acquire any of the Securities or coupons, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such
Securities or coupons unless and until the same are surrendered to the Trustee
for cancellation.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities
of any series, interest on the Securities of each series shall be computed on
the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive Additional
Amounts, as provided in Section 1007), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for
Registered Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section 305, (ii)
Securities and coupons which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, (iii)
coupons appertaining to Securities called for redemption and maturing
after the relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (iv) Securities and coupons for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company or the Guarantor and thereafter repaid to
the Company or the Guarantor or discharged from such trust, as provided
in Section 1003) and not theretofore cancelled have been delivered to
the Trustee (or any other agent of the Company for such purpose) for
cancellation; or
(B) all such Securities and, in the case of (i) or (ii) below, any
coupons appertaining thereto not theretofore delivered to the Trustee
(or any other agent of the Company for such purpose) for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption,
and the Company 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 money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities and coupons not
theretofore delivered to the Trustee for cancellation, for principal and
any premium, interest and Additional Amounts to
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the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company or the Guarantor has paid or caused to be paid all
other sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee under Section 607,
the obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to subclause
(B) of Clause (1) of this Section, the obligations of the Trustee under Section
402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company or the Guarantor acting as Paying Agent) as the Trustee
may determine, to the Persons entitled thereto, of the principal and any
premium, interest and Additional Amounts for whose payment such money has been
deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by 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):
(1) default in the payment of any installment of interest or
Additional Amounts upon any Security of that series as and when the same
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of all or any part of the principal
(including any amount in respect of original issue discount) of or any
premium on any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, as and when
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company or the Guarantor in this Indenture or in the
Guarantees with respect to the Securities of such series (other than a
covenant or agreement a default in whose performance or whose breach is
elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 90 days (or such other period, if any, established
pursuant to Section 301) after there has been given, by registered or
certified mail, to the Company and the Guarantor by the Trustee or to the
Company and the Guarantor and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
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(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or the Guarantor in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor or of any substantial part of its
respective property, or ordering the winding up or liquidation of its
respective affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(6) the commencement by the Company or the Guarantor of a voluntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Company or the Guarantor to the entry of a decree or order for relief in
respect of the Company or the Guarantor in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or the consent by the Company or the
Guarantor to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or the Guarantor or of any substantial part of its
respective property, or the making by the Company or the Guarantor of an
assignment for the benefit of creditors, or the admission by the Company or
the Guarantor in writing of inability of the Company or the Guarantor, as
the case may be, to pay its debts generally as they become due; or
(7) any other Event of Default provided with respect to Securities of
that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default specified in Section 501(1), 501(2), 501(3) or
501(4) (if the Event of Default under Section 501(4) is with respect to less
than all series of Securities then Outstanding) with respect to Securities of
any series at the time Outstanding occurs and is continuing, then in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company and the Guarantor (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable. If an
Event of Default specified in Section 501(4) (if the Event of Default under
Section 501(4) is with respect to all series of Securities then Outstanding),
501(5) or 501(6) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of all series (treated as one class) may declare the principal amount of all the
Securities of all series (or, if any Securities of any series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified by the terms thereof) to be due and payable immediately, by a
notice in writing to the Company and the Guarantor (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series (or of all Outstanding Securities, as the
case may be), by written notice to the Company, the Guarantor and the Trustee,
may rescind and annul such declaration and its consequences if
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest and Additional Amounts, if any, on all
Securities of that series (or all Securities, as the case may be),
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(B) the principal of (and premium, if any, on) any Securities of
that series (or all Securities, as the case may be) which have become
due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates or Yield to Maturity (in the case of
Original Issue Discount Securities) prescribed therefor in such
Securities to the date of such payment or deposit,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest and Additional Amounts, if any, at the rate or
rates prescribed therefor in such Securities to the date of such payment
or deposit, and
(D) all sums paid or advanced by the Trustee hereunder, except as a
result of negligence, wilful misconduct or bad faith, and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or all Securities, as the case may be), other than the non-payment of the
principal of Securities of that series (or all Securities, as the case may
be), which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Guarantor and the Trustee shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Guarantor and the Trustee shall continue as though no such
proceeding had been taken.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest or Additional
Amounts, if any, on any Security when such interest becomes due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal and any premium and interest and any
Additional Amounts and, to the extent that payment of such interest shall be
legally enforceable, interest on any overdue principal and premium and on any
overdue interest and Additional Amounts, at the rate or rates or Yield to
Maturity (in the case of Original Issue Discount Securities) prescribed therefor
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, except as a result of its negligence, wilful misconduct
or bad faith.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceedings to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities and
coupons and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of the Company, the Guarantor or any other
obligor upon such Securities and coupons, wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to
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protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or the Guarantor
(or any other obligor upon the Securities), or the property of the Company or
its creditors or of any Guarantor or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607, except as a result of the negligence,
wilful misconduct or bad faith of the Trustee.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities or
the coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest or any Additional Amounts, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of accrued and unpaid interest on and interest
on amounts in default under the Securities and coupons in respect of which
or for the benefit of which such moneys have been collected which shall
then be outstanding, such payments to be made ratably to the persons
entitled thereto;
THIRD: To the payment of principal and premium and Additional Amounts,
if any, on such Securities, ratably to the aggregate of such principal and
premium, if any, and Additional Amounts, if any; and
FOURTH: The surplus (if any) of such moneys and any interest accrued
or earned on such moneys received by the Trustee shall be paid to the
Company or the Guarantor or either of their assigns.
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SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupons shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) in the case of an Event of Default specified in Section 501(1),
501(2) or 501(3), the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series, or in the case of an Event of
Default specified in Section 501(4) (which relates to less than all series
of Securities then Outstanding), the Holders of not less than 25% in
principal amount of the Outstanding Securities of each series affected
thereby (each such series treated as a separate class), or, in the case of
any Event of Default specified in Section 501(4) (which relates to all
series of Securities then Outstanding), 501(5) or 501(6), the Holders of
not less than 25% in principal amount of the Outstanding Securities of all
series (treated as one class), shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of the series affected
thereby (or all series, as the case may be);
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security or coupons shall have the right, which is absolute and unconditional,
to receive payment of the principal of and any premium and (subject to Section
307) interest on such Security or payment of such coupon on the respective
Stated Maturities expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the
Guarantor, the Trustee and the Holders of Securities and coupons shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders of Securities
and coupons shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities or coupons in the last paragraph
of Section 306, no right or remedy herein conferred upon or
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reserved to the Trustee or to the Holders of any Securities or coupons is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities or
coupons to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this Article
or by law to the Trustee or to the Holders of Securities and coupons may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities and coupons, as the case may be.
SECTION 512. Control by Holders.
In the case of an Event of Default specified in Section 501(1), 501(2) or
501(3), the Holders of a majority in principal amount of the Outstanding
Securities of that series, or in the case of an Event of Default specified in
Section 501(4) (which relates to less than all series of Securities then
Outstanding), the Holders of a majority in principal amount of the Outstanding
Securities of each series affected thereby (each series acting as a separate
class), or, in the case of any Event of Default specified in Section 501(4)
(which relates to all series of Securities then Outstanding), 501(5) or 501(6),
the Holders of a majority in principal amount of the Outstanding Securities of
all series (acting as one class) 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 (or all Securities, as the case may be), provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
In the case of an Event of Default specified in Section 501(3) or 501(4)
(which relates to less than all series of Securities then Outstanding), the
Holders of not less than a majority in principal amount of the Outstanding
Securities of each series affected thereby (each series acting as a separate
class) may on behalf of the Holders of all the Securities of such series and any
related coupons waive any past default hereunder with respect to such series and
its consequences, or, in the case of an Event of Default specified in Section
501(4) (which relates to all series of Securities then Outstanding), 501(5) or
501(6), the Holders of not less than a majority in principal amount of the
Outstanding Securities of all series (acting as one class) may on behalf of the
Holders of all the Securities of all series and any related coupons waive any
past default hereunder with respect to such Securities and its consequences,
except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series (or all the Securities, as the case may be), 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 (or all Outstanding Securities, as
the case may be) affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company or the Guarantor.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 30 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event which is, or after
notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(2) any request or direction of the Company or the Guarantor mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order or Guarantor Request or Guarantor Order, as the case may be, and any
resolution of the Board of Directors of the Company or the Guarantor shall
be sufficiently evidenced by a Board Resolution of the Company or the
Guarantor, as the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such
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Holders of Securities of any series or any related coupons shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company and the Guarantor, personally or by agent or
attorney; and
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, and in any coupons and the Guarantees, shall be
taken as the statements of the Company or the Guarantor, as the case may be, and
neither the Trustee nor any Authenticating Agent assumes any responsibility for
their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, the coupons or the
Guarantees. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to Sections 608 and 613, may otherwise deal with the Company and
the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed with the Company or the Guarantor, as the case may be. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company or the Guarantor,
as the case may be, upon the written order of the Company or the Guarantor,
signed by the Chairman of the Board, the President, any Vice President, the
Treasurer or an Assistant Treasurer of the Company or the Guarantor.
SECTION 607. Compensation and Reimbursement.
The Company and the Guarantor agree
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, wilful
misconduct or bad faith; and
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(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence, wilful misconduct
or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 608. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under an Indenture, dated as of
October 1, 1992, among Amoco Canada Petroleum Company Ltd., the Company, the
Guarantor and the Trustee.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000 and has its Corporate Trust Office
in The City of New York. If any such Person publishes reports of condition at
least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of such
Person shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. If at any time the Trustee
with respect to the Securities of any series shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The Trustee may resign at any time with respect to the Securities of one or
more series by giving written notice thereof to the Company and the Guarantor.
If the instrument of acceptance by a successor Trustee required by Section 611
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
The Trustee may be removed at any time with respect to the Securities of
any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company and the Guarantor. Such Holders of a majority in principal amount of the
Outstanding Securities of such series may nominate with respect to such series
of Securities a successor trustee by written notice of such action to the
Trustee, the Company, the Guarantor and the successor trustee which shall be
deemed appointed as successor trustee with respect to such series of Securities,
unless within ten days after such nomination the Company or the Guarantor
objects thereto, in which case the Trustee so removed or any Holder of a
Security of such Series upon the terms and conditions and otherwise as provided
in this Section 610, may petition any court of competent jurisdiction for an
appointment of a successor trustee with respect to such series of Securities.
If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company, the Guarantor or any Holder who has been a
bona fide Holder of a Security for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 609 and shall
fail to resign after written request therefor by the Company, the Guarantor
or any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (B) subject to Section 514, any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
If the Trustee shall resign, be removed or become incapable of acting, or
if a vacancy shall occur in the office of Trustee for any cause, with respect to
the Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner required by Section
611, subject to Section 514, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The Company shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a
successor Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company, the Guarantor and the retiring Trustee
an instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on the
request of the Company, the Guarantor or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the Guarantor,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in
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such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company, the Guarantor or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon request of any such successor Trustee, the Company and the Guarantor
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company or the
Guarantor (or any other obligor upon the Securities and any related coupons),
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company or the Guarantor (or any
such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee 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, deliver, redeliver or endorse Securities of such
series issued upon original issue and 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 of
Securities by the Trustee, delivery or redelivery of Securities to or by the
Trustee, the Trustee's certificate of authentication or endorsement of the
Securities by the Trustee, such reference shall be deemed to include
endorsement, authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and the Guarantor and shall at all times be a
corporation organized and doing business under the laws of the United States of
America, any State or Territory thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal, State, Territorial or District of Columbia 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,
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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, the Company 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, the Company 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 may appoint a successor
Authenticating Agent which shall be acceptable to the Company and the Guarantor
and shall give notice of such appointment in the manner provided in Section 106
to all Holders of Registered Securities, if any, of the series with respect to
which such Authenticating Agent will serve. Any successor Authenticating Agent
upon acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as if
originally named as an Authenticating Agent. No successor Authenticating Agent
shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment 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 alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
.............................................
As Trustee
By ......................................... ,
As Authenticating Agent
By ..........................................
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR
SECTION 701.Company and Guarantor to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than August 28 and February 28 in each
year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders of Registered Securities of each series
as of the preceding June 30 or December 31, as the case may be, and
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(2) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company 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 Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Registered Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Registered 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.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company, the Guarantor and the Trustee that neither the Company nor the
Guarantor nor the Trustee nor any agent of any of them shall be held accountable
by reason of any disclosure of information as to names and addresses of Holders
of Registered Securities made pursuant to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than May 15 in each calendar year,
commencing in 1998.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company and the
Guarantor. The Company and the Guarantor will notify the Trustee when any
Securities are listed on any stock exchange.
SECTION 704. Reports by Company and Guarantor.
The Company and the Guarantor shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
by the Company or the Guarantor with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 801. Merger, Consolidation or Sale of Assets by the Company.
Subject to the provisions of Section 1005(d), nothing contained in this
Indenture or in any of the Securities shall prevent any consolidation or merger
of the Company with or into any other corporation or
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corporations (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any sale or conveyance of all or
substantially all the property of the Company, to any other corporation (whether
or not affiliated with the Company) authorized to acquire and operate the same;
provided however, and the Company hereby covenants and agrees, that (i) upon any
such consolidation, merger, sale or conveyance, other than any such sale or
conveyance by the Company to a Restricted Subsidiary, the due and punctual
payment of the principal (or, if the Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of and any interest, premium or Additional Amounts on all
of the Securities and any coupons, according to their respective tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be expressly
assumed, by supplemental indenture satisfactory in form to the Trustee, executed
and delivered to the Trustee by the corporation (if other than the Company)
formed by such consolidation, or into which the Company shall have been merged,
or by the corporation which shall have acquired such property and that (ii) such
successor corporation shall agree in such supplemental indenture that any amount
to be paid by such successor corporation to holders of the Securities and
coupons shall be paid without deduction or withholding for any and all present
and future withholding taxes, levies and charges whatsoever imposed by or for
the account of the country (other than the United States of America) in which
any such successor corporation is organized or any political subdivision or
taxing authority thereof or therein, or if deduction or withholding of any such
taxes, levies or charges shall at any time be required by such country as
aforesaid, or any of its political subdivisions or taxing authorities, such
successor corporation will pay any such additional amount in respect of
principal (including any amount in respect of original issue discount) and
interest, premium or Additional Amounts, if any, as may be necessary in order
that the net amounts paid to the holders of the Securities and coupons or the
Trustee, as the case may be, after such deduction or withholding, shall equal
the respective amounts of principal (including any amount in respect of original
issue discount) and interest, premium or Additional Amounts, if any, as
specified in the Securities and any coupons to which such Holders or the Trustee
are entitled; except that the foregoing shall not apply to any such tax, levy or
charge which would not be payable or due but for the fact that (A) the Holder of
such Security or coupon is a domiciliary, national or resident of, or is
ordinarily resident in, or is engaged in business or maintains a branch or
agency or a permanent establishment or is physically present in such country or
such political subdivision or otherwise has some connection with such country or
such political subdivision other than by the holding or ownership of a Security
or coupon or the collection of principal (including any amount in respect of
original issue discount) and interest, premium or Additional Amounts, if any, or
the enforcement of a Security, coupon or Guarantee, (B) the Holder failed to
make a declaration that it is not a domiciliary, national or resident of such
country or such political subdivision (or as to any other matter) or to exercise
any other claim to which it is entitled, or (C) where presentation is required,
such Security or coupon was presented more than 10 days after the date such
payment became due or was provided for, whichever is later, and (D) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in the performance
of any covenants or obligations of the Company under the Securities or coupons
or of this Indenture.
SECTION 802. Successor Corporation to the Company.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of and interest, premium and Additional Amounts, if
any, on all of the Securities, together with any coupons appertaining thereto,
and the due and punctual performance of all of the covenants and conditions of
this Indenture to be performed by the Company, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it had
been named herein as the party of the first part. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name (or, with
respect to Securities of a series previously authorized hereunder, in the name
of Amoco Company) any or all of the Securities issuable hereunder, together with
any coupons appertaining thereto, which theretofore shall not have been signed
by
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the Company and delivered to the Trustee; and, upon the order of such successor
corporation instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities, together with any coupons appertaining thereto,
which previously shall have been signed and delivered by the officers of the
Company to the Trustee for authentication, and any Securities, together with any
coupons appertaining thereto, which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities of any series so issued, together with any coupons appertaining
thereto, shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series, together with any coupons
appertaining thereto, theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Securities, together with any
coupons appertaining thereto, had been issued at the date of the execution of
the Securities. In the event of any such sale or conveyance, the Company or any
successor corporation which shall theretofore have become such in the manner
described in this Article Eight shall be discharged from all obligations and
covenants under this Indenture and the Securities and any coupons and may be
dissolved and liquidated.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
coupons thereafter to be issued as may be appropriate.
SECTION 803. Merger, Consolidation or Sale of Assets by the Guarantor.
Nothing contained in this Indenture, in any of the Securities or coupons or
in any of the Guarantees shall prevent any consolidation or merger of the
Guarantor with or into any other corporation or corporations (whether or not
affiliated with the Guarantor), or successive consolidations or mergers in which
the Guarantor or its successor or successors shall be a party or parties, or
shall prevent any sale or conveyance of all or substantially all the property of
the Guarantor, to any other corporation (whether or not affiliated with the
Guarantor) authorized to acquire and operate the same; provided, however, and
the Guarantor hereby covenants and agrees, that upon any such consolidation,
merger, sale or conveyance, other than any such sale or conveyance by the
Guarantor to the Company or one of its Restricted Subsidiaries, the Guarantee of
the due and punctual payment of the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of and interest, premium and
Additional Amounts, if any, on all of the Securities and any coupons and the
Guarantees, according to their respective tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Guarantor, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the corporation (if other than the Guarantor) formed
by such consolidation, or into which the Guarantor shall have been merged, or by
the corporation which shall have acquired such property.
SECTION 804. Successor Corporation to the Guarantor.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the
Guarantee of the due and punctual payment of the principal (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in terms of that series) of and interest, premium and
Additional Amounts, if any, on all of the Securities together with any coupons
appertaining thereto and the Guarantees, and the due and punctual performance of
all of the covenants and conditions of this Indenture to be performed by the
Guarantor, such successor corporation shall succeed to and be substituted for
the Guarantor, with the same effect as if it had been named herein as the
Guarantor. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name (or, with respect to Guarantees of Securities of a
series previously authorized hereunder, in the name of Amoco Corporation) any or
all of the Guarantees issuable hereunder which theretofore shall not have been
signed by the Guarantor and delivered to the Trustee; and, upon the order of
such successor corporation instead of the Guarantor and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall deliver any Guarantees which previously shall have been signed and
delivered by the officers of the Guarantor to the Trustee, and any Guarantees
which such successor corporation thereafter shall cause to be
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signed and delivered to the Trustee. All the Guarantees of any series so issued
shall in all respects have the same legal rank and benefit under this Indenture
as the Guarantees of such series theretofore or thereafter issued in accordance
with the terms of this Indenture as though all of such Guarantees had been
issued at the date of the execution hereof. In the event of any such sale or
conveyance the Guarantor or any successor corporation which shall theretofore
have become such in the manner described in this Article Eight shall be
discharged from all obligations and covenants under this Indenture, the
Securities and the Guarantees and may be dissolved and liquidated.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Securities and
coupons and the Guarantees thereafter to be issued as may be appropriate.
SECTION 805. Opinion of Counsel to Be Given Trustee.
The Trustee, subject to the provisions of Sections 601 and 603, may receive
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale or conveyance and any such assumption complies with the provisions
of this Article Eight.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by a Board Resolution, 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 for any of the following purposes:
(1) to evidence the succession of another Person to the Company or the
Guarantor and the assumption by any such successor of the covenants of the
Company or the Guarantor herein and in the Securities or the Guarantees; or
(2) to add to the covenants of the Company or the Guarantor for the
benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), and to make the occurrence, or the occurrence and
continuance, of a default in any of such additional covenants a default or
an Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant such supplemental indenture
may provide for a particular period of grace after default (which period
may be shorter or longer than that allowed in the case of other defaults)
or may provide for an immediate enforcement upon such default or may limit
the remedies available to the Trustee upon such default, or to surrender
any right or power herein conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such additional Events
of Default are to be for the benefit of less than all series of Securities,
stating that such additional Events of Default are expressly being included
solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to be
issued in exchange for Registered Securities of other authorized
denominations or to permit or facilitate the issuance of Securities in
uncertificated form, provided that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (A) >shall neither apply to any
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Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor modify the
rights of the Holder of any such Security with respect to such provision
and (B) shall not become effective in respect of any Security of any series
created prior to the execution of such supplemental indenture until such
time as there is no such Security of such series Outstanding; or
(6) to secure the Securities and the Guarantees pursuant to the
requirements of Section 1008 or otherwise; or
(7) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301 or of the related
Guarantees as permitted by Section 206; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action pursuant
to this Clause (9) shall not adversely affect the interests of the Holders
of Securities of any series or any related coupons in any material respect;
or
(10) to provide for the assumption by the Guarantor or a wholly owned
subsidiary (subject to and upon compliance with the provisions of Section
801) of all liabilities and obligations of the Company with respect to the
Securities of one or more series and any related coupons, and upon such
assumption, the release of the Company from all such liabilities and
obligations.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company, the
Guarantor and the Trustee, the Company, when authorized by a Board Resolution,
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
Securities of such series and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1007, or reduce the amount of the
principal of an Original Issue Discount Security or any other Security
which would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502, or change any Place of Payment
where, or the coin or currency in which, any Security or any premium or
interest or Additional Amounts thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption, on or after the
Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or voting,
or
(3) modify any of the provisions of this Section or 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
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waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed
to require the consent of any Holder of a Security or coupon with respect
to changes in the references to "the Trustee" and concomitant changes in
this Section and Section 1008, or the deletion of this proviso, in
accordance with the requirements of Sections 611 and 901(8), or
(4) change in any manner adverse to the interests of the Holders of
any Outstanding Securities the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of the principal
thereof and any premium or interest or Additional Amounts thereon or any
sinking or analogous fund payments provided in respect thereof.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. Upon the request of the Company and
the Guarantor, accompanied in each case by a copy of a Board Resolution, or of
an appropriate record of action taken pursuant to a Board Resolution,
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of the Holders of Securities,
as aforesaid, the Trustee shall join with the Company and the Guarantor in the
execution of such supplemental indenture; provided, however, that the Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupons appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company and the Guarantor
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee, the Company and the Guarantor, to any such
supplemental indenture may be prepared and executed by the Company, the
Guarantees endorsed thereon may be executed by the Guarantor and such Securities
may be authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, Interest, and Additional Amounts.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium, interest or Additional Amounts on the Securities of that series in
accordance with the terms of the Securities, any coupons appertaining thereto
and this Indenture. Unless otherwise specified as contemplated by Section 301
with respect to any series of Securities, any interest due on Bearer Securities
on or before Maturity shall be payable only upon presentation and surrender of
the several coupons for such interest installments as are evidenced thereby as
they severally mature.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the
Company will maintain in each Place of Payment for any series of Securities an
office or agency where Securities of that series may be presented or surrendered
for payment, an agency where Securities of that series may be surrendered for
registration of transfer or exchange and an agency where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will, unless otherwise provided with
respect to the Securities of a series pursuant to Section 301, maintain (A) in
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where Registered
Securities of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the circumstances
described in the following paragraph (and not otherwise), (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007); provided, however, that if the Securities of
that series are listed on The International Stock Exchange of the United Kingdom
and the Republic of Ireland Limited, the Luxembourg Stock Exchange or any other
stock exchange located outside the United States and such stock exchange shall
so require, the Company will maintain a Paying Agent for the Securities of that
series in London, Luxembourg or any other required city located outside the
United States, as the case may be, so long as the Securities of that series are
listed on such exchange, and (C) subject to any laws or regulations applicable
thereto, in a Place of Payment for that series located outside the United States
an office or agency where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency in respect of any
series of Securities or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Securities of that series may be
made, and notices and demands may be made or served, at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may only be presented and surrendered for payment (including
payment of any Additional Amounts payable on Bearer Securities of that series
pursuant to Section 1007) at any Paying Agent outside the United States with
respect to such series (except as provided below in the next succeeding
paragraph), and the Company hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
No payment of principal, premium or interest on Bearer Securities shall be
made at any office or agency of the Company in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
the Securities of a series are denominated and payable in U.S. dollars, payment
of principal of and any premium and interest on any Bearer Security (including
any Additional Amounts payable on Securities of such series pursuant to
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Section 1007) shall be made at the office of the Company's Paying Agent in The
City of New York, if (but only if) payment in U.S. dollars of the full amount of
such principal, premium, interest or Additional Amounts, as the case may be, at
all offices or agencies outside the United States maintained for the purpose by
the Company in accordance with this Indenture is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designation as the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Guarantor will maintain in The City of New York, an office or agency
where notices and demands to or upon the Guarantor in respect of the Guarantees
and this Indenture may be served, which shall initially be the Corporate Trust
Office of the Trustee. The Guarantor will give prompt written notice to the
Trustee of the location, and any change in the location, of any such office or
agency. If at any time the Guarantor shall fail to maintain any such required
office or agency in respect of the Guarantees or shall fail to furnish the
Trustee with the address thereof, such notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Guarantor hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands.
SECTION 1003. Provisions as to Paying Agent; Money for Securities Payments to Be
Held in Trust; Return of Unclaimed Moneys.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium, interest or Additional Amounts on any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal and any premium,
interest and Additional Amounts 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 any failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of or any
premium, interest or Additional Amounts on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided by the Trust Indenture Act, and (unless such Paying Agent is
the Trustee) the Company will promptly notify the Trustee of any failure so to
act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section, that such Paying Agent will (1) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (2) during the
continuance of any default by the Company or the Guarantor (or any other obligor
upon the Securities of that series) in the making of any payment in respect of
the Securities of that series, upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company or the Guarantor may at any time, for the purpose of obtaining
the satisfaction and discharge with respect to one or more or all Series of
Securities under this Indenture or for any other purpose, pay, or by Company
Order or Guarantor Order direct any Paying Agent to pay, to the Company or to
the Trustee all sums held in trust for any such series by the Company, the
Guarantor or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company, the
Guarantor or such Paying Agent; and, upon such payment by any Paying Agent to
the Company or the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
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Any money deposited with the Trustee or any Paying Agent, or then held by
the Company or the Guarantor, in trust for the payment of the principal of or
any premium, interest or Additional Amounts on any Security of any series and
remaining unclaimed for two years after such principal, premium, interest or
Additional Amounts have become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company or the Guarantor) shall be
discharged from such trust; and the Holder of such Security or any coupon
appertaining thereto shall thereafter, as an unsecured general creditor, look
only to the Company and 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 the Company or the Guarantor as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series of Securities, notice that such money remains unclaimed and that, after a
date specified therein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officer's
Certificate, stating that, in the course of the performance by the signer of
such Officer's Certificate of his duties as an officer of the Company, he would
normally have knowledge of any default by the Company in the performance and
observance by the Company of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the signer has knowledge that the Company is in
default, specifying all such defaults and the nature and status thereof of which
he may have knowledge.
The Guarantor will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Guarantor ending after the date hereof, an Officer's
Certificate, stating that, in the course of the performance by the signer of
such Officer's Certificate of his duties as an officer of the Guarantor, he
would normally have knowledge of any default by the Guarantor in the performance
and observance by the Guarantor of any of the terms, provisions and conditions
of this Indenture (without regard to any period of grace or requirement of
notice provided hereunder) and, if the signer has knowledge that the Guarantor
shall be in default, specifying all such defaults and the nature and status
thereof of which he may have knowledge.
SECTION 1005. Limitation on Liens.
(a) The Company will not, nor will it permit any Restricted Subsidiary to,
issue, assume or guarantee any Debt if such Debt is secured by a Mortgage upon
(i) any Producing Property, (ii) any Refining or Manufacturing Property or (iii)
any shares of stock or indebtedness of any Restricted Subsidiary, without in any
such case effectively providing, concurrently with the issuance, assumption or
guarantee of any such Debt, that the Securities (together with, if the Company
shall so determine, any other indebtedness of, or guaranteed by, the Company or
such Restricted Subsidiary ranking equally with the Securities and then existing
or thereafter created) shall be secured equally and ratably with (or prior to)
such Debt, so long as such Debt shall be so secured; provided, however, that the
foregoing restriction shall not apply to:
(1) Mortgages existing as of the date of the first issuance by the
Company of Securities issued pursuant to this Indenture;
(2) Mortgages on property, shares of stock or indebtedness, or in
respect of indebtedness, of any corporation existing at the time such
corporation becomes a Restricted Subsidiary, or arising thereafter pursuant
to contractual commitments entered into prior to and not in contemplation
of such corporation becoming a Restricted Subsidiary;
(3) Mortgages on property, shares of stock or indebtedness, or in
respect of indebtedness, existing at the time of acquisition thereof
(including acquisition through merger, amalgamation or consolidation), or
arising thereafter pursuant to contractual commitments entered into prior
to and not in contemplation of the acquisition of such property, shares,
stock or indebtedness;
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(4) Mortgages securing the payment of all or any part of the purchase
price of any property or securing any Debt incurred prior to, at the time
of or within 90 days after the acquisition of such property for the purpose
of financing all or any part of the purchase price thereof (provided such
Mortgages are limited to such property and improvements thereon);
(5) Mortgages which secure Debt owing by any Restricted Subsidiary to
the Company, the Guarantor or to a Restricted Subsidiary;
(6) Mortgages on any Producing Property or Refining or Manufacturing
Property to secure all or any part of the cost of surveying, exploration,
mining, drilling, extraction, development, construction, alteration, repair
or improvement of all or any part thereof, or to secure Debt incurred prior
to, at the time of or within 12 months after the completion of such
surveying, exploration, mining, drilling, extraction, development,
construction, alteration, repair or improvement, whichever is later, for
the purpose of financing all or any part of such cost (provided such
Mortgages are limited to such property and improvements thereon);
(7) Mortgages securing Debt in respect of commitments of purchase or
sale of, or the transportation or distribution of, products derived from
the property so mortgaged;
(8) Mortgages on personal property, other than on any shares of stock
or indebtedness of any Restricted Subsidiary;
(9) Mortgages securing Debt incurred in connection with environmental
law obligations imposed by or pursuant to legislative, governmental or
regulatory authority;
(10) Mortgages in favor of or at the request of the United States or
any state or territory thereof, or any other country or any department,
agency, instrumentality or political subdivision of any such jurisdiction,
or in favor of holders of securities issued by any such entity, securing
Debt owing thereto or partial, progress, advance or other payments or
performance pursuant to the provisions of any contract, subcontract or
statute, or to secure any indebtedness incurred for the purpose of
financing all or any part of any purchase price or cost of constructing or
improving the property subject thereto, including, without limitation, any
Mortgages securing Debt issued, assumed or guaranteed in industrial
development, pollution control, or similar revenue bonds;
(11) Mortgages arising by reason of any judgment, decree or order of
any court, so long as any appropriate legal proceedings which may have been
initiated for the review of such judgment, decree or order shall not have
been finally terminated or so long as the period within which such
proceedings may be initiated shall not have expired, or by reason of any
deposit or pledge with any surety company or clerk of any court, or in
escrow, as collateral in connection with, or in lieu of, any bond on appeal
from any judgment or decree against the Company or any Restricted
Subsidiary or in connection with other proceedings or actions at law or in
equity by or against the Company or any Restricted Subsidiary;
(12) Mortgages on current assets to secure Debt incurred in the
ordinary course of business and maturing not more than twelve months from
the date incurred; and
(13) any extension, renewal, alteration or replacement (or successive
extensions, renewals, alterations or replacements), in whole or in part, of
any Mortgage referred to in the foregoing Clauses (1) through (12)
inclusive; provided that the principal amount of Debt secured thereby shall
not materially exceed the principal amount of Debt so secured at the time
of such extension, renewal, alteration or replacement and that such
extension, renewal, alteration or replacement shall be limited to all or a
part of the property (plus improvements on such property) which secured the
Mortgage so extended, renewed, altered or replaced.
(b) Notwithstanding the foregoing provisions of subsection (a) of this
Section 1005, the Company and any one or more Restricted Subsidiaries may issue,
assume or guarantee any secured Debt which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
such secured Debt of the Company and its Restricted Subsidiaries and the amount
of capitalized lease obligations (as included in the latest annual audited
consolidated balance sheet of the Guarantor) related to property
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subject to Sale and Lease-Back Transactions (as defined in Section 1006) which
would be subject to the restrictions of Section 1006 but for this paragraph,
does not at the time exceed 10% of Consolidated Adjusted Net Assets.
(c) For the purpose of this Section 1005 and Section 1006, the following
types of transactions, among others, shall not be deemed to create Debt: (i) the
sale or other transfer of oil, gas or other minerals in place for a period of
time until, or in an amount such that, the purchaser will realize therefrom a
specified amount of money (however determined) or a specified amount of such
minerals or (ii) the sale or other transfer of any other interest in property of
the character commonly referred to as a "production payment".
(d) The Company will not, nor will it permit any Restricted Subsidiary to,
merge or consolidate with another corporation if any Producing Property or
Refining or Manufacturing Property or shares of stock or indebtedness of any
Restricted Subsidiary owned immediately prior thereto which remains Producing
Property or Refining or Manufacturing Property or shares of stock or
indebtedness of any Restricted Subsidiary immediately thereafter would thereupon
become subject to any Mortgage, other than a Mortgage referred to in the
foregoing Clauses (1) through (13) inclusive of Subsection (a) above and other
than a Mortgage for, evidencing or with respect to secured Debt which is
permitted under Subsection (b) of this Section 1005, unless the Company or such
Restricted Subsidiary shall have effectively provided that the Securities
(together with, if the Company shall so determine, any other indebtedness of or
guaranteed by the Company or such Restricted Subsidiary ranking equally with the
Securities and then existing or thereafter created) shall be secured by a direct
lien on such Producing Property or Refining or Manufacturing Property or shares
of stock or indebtedness of any Restricted Subsidiary, equally and ratably with
(or prior to) such Mortgage, so long as such Mortgage shall exist.
SECTION 1006. Limitation on Sale and Lease-Back Transactions.
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 of any Producing Property or Refining or
Manufacturing Property (except for temporary leases for a term of not more than
three 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 and Lease-Back Transaction"), unless the proceeds of such sale are at
least equal to the fair value (as determined by the Board of Directors of the
Company) of such property and
(1) the Company or such Restricted Subsidiary would be entitled to
issue, assume or guarantee Debt, in an amount equal to the fair value (as
determined by the Board of Directors of the Company) of the property so
leased, secured by a Mortgage on the property to be leased without equally
and ratably securing the Securities of any series and without violation of
the provisions of Section 1005;
(2) the Company shall apply within 12 months after the consummation of
such transaction an amount equal to the net proceeds of such transaction to
the retirement (other than any mandatory retirement) of Debt issued,
assumed or guaranteed by the Company which by its terms matures at, or is
extendible or renewable at the option of the obligor to, a date more than
12 months after the date of the creation of such Debt; or
(3) since the date of this Indenture and within a period commencing 12
months prior to the consummation of such transaction and ending 12 months
after the consummation of such transaction, the Company or such Restricted
Subsidiary has expended or shall expend for any Producing Property or
Refining or Manufacturing Property an amount equal to (A) the net proceeds
of such transaction and the Company elects to designate such amount as a
credit against such transaction or (B) a part of the net proceeds of such
transaction and the Company elects to designate such amount as a credit
against such transaction and applies an amount equal to the remainder of
the net proceeds as provided in Clause (2) above.
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SECTION 1007. Additional Amounts.
If the Securities of a series provide for the payment of additional amounts
("Additional Amounts"), the Company will pay to the Holder of any Security of
such series or any coupon appertaining thereto Additional Amounts as provided
therein. Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of or any premium or interest on, or in respect of, any
Security of any series or payment of any related coupon or the net proceeds
received on the sale or exchange of any Security of any series, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in this Section to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to the provisions of this
Section and express mention of the payment of Additional Amounts (if applicable)
in any provisions hereof shall not be construed as excluding Additional Amounts
in those provisions hereof where such express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities or coupons and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out of
or in connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section.
SECTION 1008. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 301 for Securities
of such series, the Company and the Guarantor may, with respect to the
Securities of any series, omit in any particular instance to comply with any
term, provision or condition set forth in any covenant provided pursuant to
Section 301(22), 901(2) or 901(7) for the benefit of the Holders of such series
if before the time for such compliance the Holders of at least 66 2/3% in
principal amount of the Outstanding Securities of such series shall, by Act of
such Holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the Guarantor and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 301 for such Securities) in accordance with
this Article. Reference to the Trustee in this Article shall be deemed also to
refer to any agent of the Company appointed with respect to the Securities of a
series for the purpose of acting
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as the Company's agent with respect to the redemption of Securities of such
series. Nothing herein shall prevent the establishment, in the manner
contemplated by Section 301 and subject to Section 107 hereof, of redemption
provisions which vary from those set forth in this Article Eleven applicable to
Securities of a series, including specifically any provisions specifying
circumstances under which the Company, the Guarantor or their assignees may
repurchase Securities submitted for redemption in order to resell such
Securities.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities of a series shall be
evidenced by a Board Resolution or in another manner specified as contemplated
by Section 301 for such Securities. In case of any redemption at the election of
the Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as shall be provided in the
Securities of the series or, if no such method shall be specified, as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of a portion of the principal amount of any Security of such
series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless
such redemption affects only a single Security), the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series and specified tenor
not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106
to the Holders of Securities to be redeemed upon such days notice as provided in
the Securities of the series.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
consisting of more than a single Security are to be redeemed, the
identification (and, in the case of partial redemption of any such
Securities, the principal amounts) of the particular Securities to be
redeemed and, if less than all the Outstanding Securities of any series
consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest (and Additional Amounts, if any) thereon will cease to accrue on
and after said date,
(5) the place or places where such Securities, together in the case of
Bearer Securities with all unmatured coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of
the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Securities of any series to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee for such series in the name and at the expense of the
Company and shall be irrevocable.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company or the Guarantor shall deposit
with the Trustee or with a Paying Agent (or, if the Company or the Guarantor is
acting as Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities or
portions of Securities of the series so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and from
and after such date (unless the Company and the Guarantor shall default in the
payment of the Redemption Price and accrued interest and accrued Additional
Amounts, if any) such Securities shall cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest and accrued Additional Amounts, if any, to the Redemption Date;
provided, however, that, installments of interest on Bearer Securities whose
Stated Maturity is on or prior to the Redemption Date shall be payable only at
an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of coupons for such interest;
and provided, further, that, unless otherwise specified as contemplated by
Section 301, installments of interest on Registered Securities whose Stated
Maturity is on or prior to the Redemption Date will be payable to the Holders of
such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
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If any Bearer Security surrendered for redemption shall not be accompanied
by all appurtenant coupons maturing after the Redemption Date, such Security may
be paid after deducting from the Redemption Price an amount equal to the face
amount of all such missing coupons, or the surrender of such missing coupon or
coupons may be waived by the Company, the Guarantor and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
however, that interest represented by coupons shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company, the Guarantor or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company, the Guarantor and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered with the
Guarantee endorsed thereon duly executed by the Guarantor.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment". If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption), together in the case of any Bearer
Securities of such series with all unmatured coupons appertaining thereto, and
(2) may apply as a credit Securities of a series which have been redeemed either
at the election of the Company pursuant to the terms of such Securities or
through the application of permitted optional sinking fund payments pursuant to
the terms of such Securities, in each case in satisfaction of all or any part of
any sinking fund payment with respect to any Securities of such series required
to be made pursuant to the terms of such Securities as and to the extent
provided for by the terms of such Securities; provided that the Securities to be
so credited have not been previously so credited. The Securities to be so
credited shall be received and credited for such purpose by the Trustee at the
Redemption Price, as specified in the Securities so to be redeemed, for
redemption through operation of the sinking fund and the amount of such sinking
fund payment shall be reduced accordingly.
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SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days prior to each such sinking fund payment date,
the Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and the Trustee (or the
Company, if it shall so request the Trustee in writing) shall cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302 or
Section 1303 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 301 as being defeasible pursuant to such
Section 1302 or 1303, in accordance with any applicable requirements provided
pursuant to Section 301 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
SECTION 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company and the Guarantor shall be deemed to have been discharged from their
respective obligations with respect to such Securities as provided in this
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Defeasance"). For this purpose, such Defeasance
means that (i) the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities and to have satisfied all its
other obligations under such Securities and this Indenture insofar as such
Securities are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), and (ii) the Guarantor shall
be released from the Guarantee, subject to the following which shall survive
until otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section 1304
and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments are
due, (2) the respective obligations of the Company and the Guarantor with
respect to such Securities under Sections 304, 305, 306, 1002 and 1003, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
SECTION 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, (1)
the Company and the Guarantor shall be released from their respective
obligations under Sections 801, 803, 1005 and 1006, and any covenants provided
pursuant to Section 301(22), 901(2) or 901(7) for the benefit of the Holders of
such Securities, and (2) the occurrence of any event specified in Sections
501(4) (with respect to any of Sections 801, 803, 1005 and 1006, and any such
covenants provided pursuant to Section 301(22), 901(2) or 901(7)) and 501(7)
shall be deemed not to
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be or result in an Event of Default, in each case with respect to such
Securities as provided in this Section on and after the date the conditions set
forth in Section 1304 are satisfied (hereinafter called "Covenant Defeasance").
For this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company and the Guarantor may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such specified Section (to the extent so specified in the case of Section
501(4)), whether directly or indirectly by reason of any reference elsewhere
herein to any such Section or by reason of any reference in any such Section to
any other provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302 or
Section 1303 to any Securities or any series of Securities, as the case may be:
(1) The Company or the Guarantor shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee which satisfies
the requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article applicable to it) as trust funds in trust for
the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of such
Securities, (A) money in an amount, or (B) Government Obligations which
through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or any such other qualifying trustee) to pay and
discharge, the principal of and any premium and interest on such Securities
on the respective Stated Maturities, in accordance with the terms of this
Indenture and such Securities (provided, however, that in the case of
Bearer Securities, not more than 50% (determined with respect to both value
and income) of the deposited collateral shall consist of Government
Obligations described in Clause (x) of the following sentence). As used
herein, "Government Obligation" means (x) with respect to any Securities or
any series of Securities, as the case may be, all of which are denominated
in U.S. dollars, securities that are (i) direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of
the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, which, in either case under Clauses (x)(i) or (x)(ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation which is held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment
of principal or interest of the Government Obligation evidenced by such
depositary receipt, and (y) with respect to any Securities or any series of
Securities, as the case may be, all or a portion of which are denominated
in a currency or currencies other than U.S. dollars, securities that are
(i) direct obligations of the sovereign government or governments issuing
the currency or currencies in which the Securities are payable for the
payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of such sovereign government the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case under Clauses (y)(i) or (y)(ii), are not
callable or redeemable at the option of the issuer thereof, and shall also
include any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Act) as custodian with respect to any such
Government Obligation which is held by such bank for the account of the
holder of such depositary receipt, or with respect to any specific payment
of principal of or interest on any Government Obligation which is so
specified and held, provided that (except as required by law) such
custodian is not
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authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of principal
or interest of the Government Obligation evidenced by such depositary
receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
(which counsel may be an employee of or counsel for the Company or the
Guarantor) stating that (A) the Company or the Guarantor, as the case may
be, has received from, or there has been published by, the Internal Revenue
Service a ruling, regulation or pronouncement of comparable authority or
(B) since the date of this instrument, there has been a change in the
applicable Federal income tax law, in either case (A) or (B) to the effect
that, and based thereon such opinion shall confirm that, the Holders of
such Securities will not recognize gain or loss for Federal income tax
purposes as a result of the deposit, Defeasance and discharge to be
effected with respect to such Securities and will be subject to Federal
income tax on the same amount, in the same manner and at the same times as
would be the case if such deposit, Defeasance and discharge were not to
occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will
be subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
(4) The Company or the Guarantor shall have delivered to the Trustee
an Officer's Certificate to the effect that neither such Securities nor any
other Securities of the same series, if then listed on any securities
exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities of such series
shall have occurred and be continuing at the time of such deposit or, with
regard to any such event specified in Sections 501(5) and (6), at any time
on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after
such 90th day).
(6) The Company or the Guarantor shall have delivered to the Trustee
an Officer's Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant Defeasance
have been complied with.
SECTION 1305.Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company or the
Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders
of such Securities, of all sums due and to become due thereon in respect of
principal and any premium and interest, but money so held in trust need not be
segregated from other funds except to the extent required by law.
The Company or the Guarantor shall pay and indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of Outstanding Securities.
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Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company or the Guarantor from time to time upon Company
Request or Guarantor Request, as the case may be, any money or Government
Obligations held by it as provided in Section 1304 with respect to any
Securities which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
SECTION 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company and the Guarantor have been
discharged or released pursuant to Section 1302 or 1303 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with respect
to such Securities in accordance with this Article; provided, however, that if
the Company or the Guarantor makes any payment of principal of or any premium or
interest on any such Security following such reinstatement of its obligations,
the Company or the Guarantor, as the case may be, shall be subrogated to the
rights (if any) of the Holders of such Securities to receive such payment from
the money so held in trust.
ARTICLE FOURTEEN
GUARANTEES
SECTION 1401. Guarantee.
The Guarantor hereby unconditionally guarantees to each Holder of a
Security authenticated and delivered by the Trustee and to each Holder of any
coupon appertaining thereto, the due and punctual payment of the principal of
(and premium, if any) and interest, if any, on such Security and the due and
punctual payment of any sinking fund or analogous payments provided for pursuant
to the terms of such Security (including all Additional Amounts payable by the
Company or the Guarantor in respect thereof pursuant to Section 1007), when and
as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and any coupon appertaining thereto and of this
Indenture. In case of the failure of the Company punctually to make any such
payment, the Guarantor hereby agrees to cause such payment to be made punctually
when and as the same shall become due and payable, whether at the Stated
Maturity or by declaration of acceleration, call for redemption or otherwise,
and as if such payment were made by the Company, and to pay any and all
Additional Amounts payable by the Guarantor in respect thereof pursuant to
Section 1007.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of
such Security or any coupon appertaining thereto or this Indenture, the absence
of any action to enforce the same, any waiver or consent by the Holder of such
Security or any coupon appertaining thereto or by the Trustee with respect to
any provisions thereof or of this Indenture, the obtaining of any judgment
against the Company or any action to enforce the same or any other circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
guarantor. The Guarantor hereby waives the benefits of diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or any coupon
appertaining thereto or the indebtedness evidenced thereby or with respect to
any sinking fund payment required pursuant to the terms of such Security and all
demands whatsoever, and covenants that this Guarantee will not be discharged in
respect of such Security or any coupon appertaining thereto except by payment in
full of the principal of (and premium, if any) and interest, if any, on such
Security or coupon (including all Additional Amounts payable in respect thereof
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pursuant to Section 1007). The Guarantor hereby agrees that, in the event of a
default in payment of principal (or premium, if any) or interest, if any, on
such Security, or a default in any sinking fund or analogous payment referred to
therein, legal proceedings may be instituted by the Trustee on behalf of, or by,
the Holder of such Security or any coupon appertaining thereto, on the terms and
conditions set forth in this Indenture, directly against the Guarantor to
enforce this guarantee without first proceeding against the Company.
The Guarantor shall be subrogated to all rights of the Holders of the
Securities of a particular series and any coupon appertaining thereto against
the Company in respect of any amounts paid by the Guarantor on account of such
Security or coupon pursuant to the provisions of this Guarantee or this
Indenture; provided, however, that the Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest, if any,
on all Securities of such series and coupons appertaining thereto issued
hereunder (including all Additional Amounts payable by the Company or the
Guarantor in respect thereof pursuant to Section 1007) shall have been paid in
full or duly provided for.
The Guarantee set forth in this Section shall not be valid or become
obligatory for any purpose with respect to a Security of any series until the
certificate of authentication on such Security shall have been signed by the
Trustee by manual signature of one of its authorized officers.
SECTION 1402. Execution and Delivery of Guarantees.
The Guarantees to be endorsed on the Securities of each series shall
include the terms of the Guarantee set forth in Section 1401 (except that
references to premium, interest and Additional Amounts need be included only if
any premium, interest or Additional Amounts, respectively, is provided for in
the terms of such series) and any other terms that may be set forth in the form
established pursuant to Section 206 with respect to such series. The Guarantor
hereby agrees to execute the Guarantees, in a form established pursuant to
Section 206, to be endorsed on each Security authenticated and delivered by the
Trustee.
The Guarantees shall be executed on behalf of the Guarantor by its Chairman
of the Board, a Vice Chairman of the Board, its President, one of its Vice
Presidents, its Treasurer or its Controller and by one of its Vice Presidents,
Director--Corporate Finance, Assistant Treasurers, Assistant Controllers, its
Secretary or one of its Assistant Secretaries, under its corporate seal
reproduced thereon. The signature of any of these officers on the Guarantees may
be manual or facsimile.
Guarantees bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Guarantor shall bind the Guarantor,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Guarantees or did not
hold such offices at the date of such Guarantees.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee endorsed
thereon on behalf of the Guarantor. The Guarantor hereby agrees that its
Guarantee set forth in Section 1401 shall remain in full force and effect
notwithstanding any failure to endorse a Guarantee on any Security.
ARTICLE FIFTEEN
MEETING OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
If Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time to
time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be
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made, given or taken by Holders of Securities of such series, including but not
limited to any of the following purposes:
(1) to give any notice to the Company, to the Guarantor or to the
Trustee, or to give any directions to the Trustee, or to consent to the
waiving of any default hereunder and its consequences, or to take any other
action authorized to be taken by Holders pursuant to any of the provisions
of Article Five;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article Six;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 902; or
(4) to take any other action authorized to be taken by or on behalf of
the Holders of any specified principal amount of the Securities of any
series under any other provisions of this Indenture or under applicable
law.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 1501, to be held at such time
and at such place in The City of New York, or in London, England as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 106, not less than 21 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company or the Guarantor, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company, the Guarantor or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in The City of New York, or in London, England for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy of a
Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and the Guarantor
and their counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 1502(a) except that such notice need be given only
once not less than five days prior to
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the date on which the meeting is scheduled to be reconvened. Notice of the
reconvening of an adjourned meeting shall state expressly the percentage, as
provided above, of the principal amount of the Outstanding Securities of such
series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in principal amount of the Outstanding Securities of that series; provided,
however, that, except as limited by the proviso to Section 902, any resolution
with respect to any consent or waiver which this Indenture expressly provides
may be given by the Holders of not less than a majority in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of a majority in principal amount of
the Outstanding Securities of that series; and provided, further, that, except
as limited by the proviso to Section 902, any resolution with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action which this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage, which is less than a majority, in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or any adjourned meeting duly reconvened and at which a quorum is
present as aforesaid by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series, in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company, the Guarantor or by Holders of Securities as provided in Section
1502(b), in which case the Company, the Guarantor or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall
be entitled to one vote for each U.S. $1,000 principal amount (or its
equivalent) of the Outstanding Securities of such series held or represented by
him; provided, however, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 1502 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in principal amount of the Outstanding
Securities of such series represented at the meeting; and the meeting may be
held as so adjourned without further notice.
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SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. Each copy shall be
signed and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to each of the Company and the
Guarantor, and another to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS AND DIRECTORS
SECTION 1601. Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of, premium, if any, or
interest, if any, on any Security or coupon, or under the Guarantees, or for any
claim based thereon or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Company or of the Guarantor in
this Indenture or in any supplemental indenture, or in any Security or coupon or
in the Guarantees, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, shareholder, officer or
director, as such, past, present or future, of the Company or of the Guarantor
or of any successor corporation of either thereof, either directly or through
the Company or the Guarantor or any successor of the Company or of the Guarantor
in this Indenture or in any supplemental indenture, or in any Security or
coupon, whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Indenture and
the issue of the Securities and coupons. Nothing in this Article Sixteen shall
impair the obligations, covenants and agreements of the Guarantor contained in
this Indenture and in the Guarantees endorsed on the Securities.
-------------------------
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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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.
AMOCO COMPANY
By /s/ W. R. HUTCHINSON
----------------
Name: W. R. Hutchinson
------------------------
Title: Vice President and Treasurer
-----------------------------
ATTEST:
/s/ S. R. SAWADA
------------
AMOCO CORPORATION
By /s/ W. R. HUTCHINSON
----------------
Name: W. R. Hutchinson
----------------
Title: Vice President -- Financial
Operations
---------------------------
ATTEST:
/s/ M. CLAYTON
----------
THE CHASE MANHATTAN BANK
By /s/ ANNE G. BRENNER
-------------------
Name: Anne G. Brenner
---------------
Title: Vice President
--------------
ATTEST:
/s/ R. LORENZEN
-----------
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STATE OF ILLINOIS }
COOK COUNTY } ss.:
On the 12th day of August, 1997, before me personally came W. R.
Hutchinson, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of Amoco Company, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ DEBRA J. ROBINSON
-----------------
STATE OF ILLINOIS }
COOK COUNTY } ss.:
On the 12th day of August, 1997, before me personally came W. R.
Hutchinson, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of Amoco Corporation, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ DEBRA J. ROBINSON
-----------------
STATE OF NEW YORK }
COUNTY OF NEW YORK } ss.:
On the 11th day of August, 1997, before me personally came Anne G. Brenner,
to me known, who, being by me duly sworn, did depose and say that he is Vice
President of The Chase Manhattan Bank, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
/s/ ANNABELLE DELUCA
----------------
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EXHIBIT A
FORM OF CERTIFICATION
UNDER THE D RULES
CERTIFICATE
AMOCO COMPANY
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the Securities held by you for our account (i) are owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) are owned by United States person(s) that (a) are foreign
branches of United States financial institutions (as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) ("financial institutions") purchasing for
their own account or for resale, or (b) acquired the Securities through foreign
branches of financial institutions and who hold the Securities through such
financial institutions on the date hereof (and in either case (a) or (b), each
such financial institution hereby agrees for the benefit of Amoco Company to
comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by financial institution(s) for purposes of resale during the restricted
period (as defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7).
In addition, financial institutions described in clause (iii) of the preceding
sentence (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities held
by you for our account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in the absence of
any such notification it may be assumed that this certification applies as of
such date.
[This certification excepts and does not relate to $ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of definitive Securities
(or, if relevant, exercise of any rights or collection of any interest) cannot
be made until we do so certify.]
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which certification is or would be relevant, we irrevocably authorize you
to procure this certification to any interested party in such proceedings.
Dated:
- --------------------------- , 199 *
Name of Person Making Certification
By:
- ------------------------------------------
- -------------------------
* To be dated no earlier than the Certification Date.
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EXHIBIT B
FORM OF CERTIFICATION TO BE GIVEN
BY THE EUROCLEAR OPERATOR OR
CEDEL BANK
CERTIFICATION
AMOCO COMPANY
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organizations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organizations") substantially to the effect
set forth in the Indenture, _________ principal amount of the above-captioned
Securities (i) is owned by persons that are not citizens or residents of the
United States, domestic partnerships, domestic corporations or any estate or
trust the income of which is subject to United States Federal income taxation
regardless of its source ("United States persons"), (ii) is owned by United
States persons that (a) are foreign branches of United States financial
institutions (as defined in the U.S. Treasury Regulations Section
1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own account
or for resale, or (b) acquired the Securities through foreign branches of
financial institutions and who hold the Securities through such financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise Amoco Company that it will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder), or (iii) is owned by financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
financial institutions described in clause (iii) above (whether or not also
described in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange (or, if relevant, exercise of any rights or collection of any interest)
any portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for exchange (or, if relevant, exercise of any rights or collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax laws of the United States. In connection therewith, if
administrative or legal proceedings are commenced or threatened in connection
with which certification is or would be relevant, we irrevocably authorize you
to procure this certification to any interested party in such proceedings.
Dated:
- --------------------------- , 199_
Yours faithfully,
[MORGAN GUARANTY TRUST
COMPANY OF NEW YORK,
Brussels office,
as operator of the
Euroclear System]
or
[CEDEL BANK]
By
--------------------------------------
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