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As filed with the Securities and Exchange Commission on August 19, 1994
Registration No. 33-
- ------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MURPHY OIL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 71-0361522
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
200 Peach Street
P.O. Box 7000
El Dorado, Arkansas 71731-7000
(501) 862-6411
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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STEVEN A. COSSE , ESQ.
Vice President and General Counsel
Murphy Oil Corporation
200 Peach Street
P.O. Box 7000
El Dorado, Arkansas 71731-7000
(501) 862-6411
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
KEITH L. KEARNEY, ESQ. KENNETH W. ORCE, ESQ.
Davis Polk & Wardwell Cahill Gordon & Reindel
450 Lexington Avenue 80 Pine Street
New York, New York 10017 New York, New York 10005
(212) 450-4000 (212) 701-3000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon
as practicable after the effective date of the Registration Statement pending
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
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EXHIBIT 1.1
UNDERWRITING AGREEMENT
___________, 1994
Murphy Oil Corporation
200 Peach Street, P.O. Box 7000
El Dorado, Arkansas 71731-7000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Murphy Oil Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell [Currency and Principal Amount] aggregate initial offering price
of [Full title of Debt Securities] (the "Debt Securities"). (The Debt
Securities are also referred to herein as the "Offered Securities.") The Debt
Securities will be issued pursuant to the provisions of an Indenture dated as
of _______________, 1994 (the "Indenture") between the Company and Chemical
Bank, as Trustee (the "Trustee").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the respective principal amounts of
Debt Securities set forth below opposite their names at a purchase price of
____% of the principal amount of Debt Securities:
Principal Amount of
Name Debt Securities
---- -------------------
Total . . . . . .
===========
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at ______ a.m. (New York time) on ___________, 199_, or at
such other time, not later than 5:00 p.m. (New York time) on __________, 199_,
as shall be designated by the Manager. The time and date of such payment and
delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the
Prospectus dated ___________, 1994, and the Prospectus Supplement dated
____________, 1994, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: ____________ __ and
____________ __ commencing
____________ __, ____
[(Interest accrues from
____________ __, ____)]
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Murphy Oil
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
_______, 1994, a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that (i) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (ii) all references in
such document to a type of security that is not an Offered Security shall not
be deemed to be a part of this Agreement, and (iii) all references in such
document to a type of agreement that has not been entered into in connection
with the transactions contemplated hereby shall not be deemed to be a part of
this Agreement.
Please confirm your agreement by having an authorized officer sign
a copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
Acting severally on behalf of themselves
and the several Underwriters named herein
By:
By:_________________________
Name:
Title:
Accepted:
MURPHY OIL CORPORATION
By:____________________
Name:
Title:
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
______, 1994
From time to time, Murphy Oil Corporation, a Delaware corporation
(the "Company"), may enter into one or more underwriting agreements that
provide for the sale of designated securities to the several underwriters
named therein. The standard provisions set forth herein may be incorporated by
reference in any such underwriting agreement (an "Underwriting Agreement").
The Underwriting Agreement, including the provisions incorporated therein by
reference, is herein referred to as this Agreement. Terms defined in the
Underwriting Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Debt Securities and has filed with, or transmitted for filing to, or
shall promptly hereafter file with or transmit for filing to, the Commission a
prospectus supplement (the "Prospectus Supplement") specifically relating to
the Offered Securities pursuant to Rule 424 under the Securities Act of 1933,
as amended (the "Securities Act"). The term "Registration Statement" means
the registration statement, including the exhibits thereto, as amended to the
date of this Agreement. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the Prospectus Supplement. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein,
the terms "Basic Prospectus," "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement" and "amendment" or "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that
are filed subsequent to the date of the Basic Prospectus by the Company with
the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating
to any Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein or (B) to that part of the
Registration Statement that constitutes the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), of the Trustee.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the Indenture
and delivered to and paid for by the Underwriters in accordance with the terms
of the Underwriting Agreement, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company, in each
case enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration, if
any, and the availability of equitable remedies may be limited by equitable
principles of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Indenture and the Offered Securities will not contravene any provision of
applicable law or the certificate of incorporation or by-laws of the Company
or any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of or qualification with any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, the Indenture or the Offered Securities
except such as may be required by the securities or Blue Sky laws of the
various states in connection with the offer and sale of the Offered Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts
or other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
2. Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective
portions of the Underwriters' Securities as soon after this Agreement has been
entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Underwriters' Securities are set forth in the
Prospectus.
3. Purchase and Delivery. Payment for the Underwriters'
Securities shall be made by certified or official bank check or checks payable
to the order of the Company in New York Clearing House funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Manager
for the respective accounts of the several Underwriters of the Underwriters'
Securities, registered in such names and in such denominations as the Manager
shall request in writing not less than two full business days prior to the
date of delivery, with any transfer taxes payable in connection with the
transfer of the Underwriters' Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date,
(i) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating
organization," as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the
condition, financial or otherwise, or in the earnings,
business or operations, of the Company and its subsidiaries,
taken as a whole, from that set forth in the Prospectus,
that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities
on the terms and in the manner contemplated in the
Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Company, dated the
Closing Date, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of ______________, special counsel for the Underwriters, dated
the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
5. Covenants of the Company. In further consideration of the
agreements of the Underwriters contained herein, the Company covenants as
follows:
(a) To furnish the Manager, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and for delivery to
each other Underwriter a conformed copy of the Registration Statement
(without exhibits thereto) and, during the period mentioned in
paragraph (c) below, as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments
thereto or to the Registration Statement as the Manager may reasonably
request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and not
to file any such proposed amendment or supplement to which the Manager
reasonably objects.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with law, forthwith to prepare, file with the Commission
and furnish, at its own expense, to the Underwriters, and to the dealers
(whose names and addresses the Manager will furnish to the Company) to
which Offered Securities may have been sold by the Manager on behalf of
the Underwriters and to any other dealer upon request, either amendments
or supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor to qualify the Offered Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the
Manager shall reasonably request and to pay all expenses (including fees
and disbursements of counsel) in connection with such qualification and
in connection with (i) the determination of the eligibility of the
Offered Securities for investment under the laws of such jurisdictions
as the Manager may designate and (ii) any review of the offering of the
Offered Securities by the National Association of Securities Dealers,
Inc.
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement covering
a twelve month period beginning on the first day of the first full
fiscal quarter after the date of this Agreement, which earning statement
shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date, not to
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company substantially similar to the Offered
Securities (other than (i) the Offered Securities and (ii) commercial
paper issued in the ordinary course of business), without the
prior written consent of the Manager.
(g) To pay all document production charges and expenses of
_____________________, special counsel to the Underwriters (but not
including their fees for professional services), in connection with the
preparation of this Agreement.
6. Covenants of the Underwriters.
(A) Each of the several Underwriters represents and agrees with
the Company that:
(a) except to the extent permitted under U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D) (the "D Rules"), (i) it has not offered or
sold, and during the restricted period will not offer or sell, Debt
Securities in bearer form (including any Debt Security in global form
that is exchangeable for Debt Securities in bearer form) to a
person who is within the United States or its possessions or to a United
States person and (ii) it has not delivered and will not deliver within
the United States or its possessions definitive Debt Securities in
bearer form that are sold during the restricted period;
(b) it has, and throughout the restricted period will have, in
effect procedures reasonably designed to ensure that its employees or
agents who are directly engaged in selling Debt Securities in bearer
form are aware that such Debt Securities may not be offered or sold
during the restricted period to a person who is within the United
States or its possessions or to a United States person, except as
permitted by the D Rules;
(c) if it is a United States person, it is acquiring the Debt
Securities in bearer form for purposes of resale in connection with
their original issuance and if it retains Debt Securities in bearer form
for its own account, it will only do so in accordance with the
requirements of U.S. Treas. Reg. Section 1.163-5(c)(2)(i)(D)(6);
(d) if it transfers to any affiliate Debt Securities in bearer
form for the purpose of offering or selling such Debt Securities during
the restricted period, it will either (i) obtain from such affiliate for
the benefit of the Company the representations and agreements contained
in clauses (a), (b) and (c) or (ii) repeat and confirm the
representations and agreements contained in clauses (a), (b) and (c) on
such affiliate's behalf and obtain from such affiliate the authority to
so obligate it;
(e) it will obtain for the benefit of the Company the
representations and agreements contained in clauses (a), (b), (c) and
(d) from any person other than its affiliate with whom it enters into a
written contract, as defined in U.S. Treas. Reg. Section
1.163-5(c)(2)(i)(D)(4) for the offer or sale during the restricted
period of Debt Securities in bearer form; and
(f) it will comply with or observe any other restrictions or
limitations set forth in the Prospectus on persons to whom, or the
jurisdictions in which, or the manner in which, the Debt Securities may
be offered, sold, resold or delivered.
All other terms used in the preceding paragraph have the meaning given to them
by the U.S. Internal Revenue Code (the "Code") and regulations thereunder,
including the D Rules. The restricted period is defined at U.S. Treas. Reg.
Section 1.163-5(c)(2)(i)(D)(7).
7. Indemnification and Contribution. The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls such Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by any Underwriter or any such
controlling person in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter through
the Manager expressly for use therein.
Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Underwriter, but only with reference to information relating
to such Underwriter furnished to the Company by such Underwriter in writing
through the Manager expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by the
Manager, in the case of parties indemnified pursuant to the second preceding
paragraph, and by the Company, in the case of parties indemnified pursuant to
the first preceding paragraph. The indemnifying party shall not be liable for
any settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
paragraph, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such proceeding.
If the indemnification provided for in the first or second
paragraph in this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand in connection with the offering of the Offered Securities
shall be deemed to be in the same respective proportions as the net proceeds
from the offering of such Offered Securities (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover of the Prospectus Supplement, bear to the aggregate public offering
price of the Offered Securities. The relative fault of the Company on the one
hand and of the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Underwriters' respective obligations to contribute pursuant to this
Section 7 are several in proportion to the respective principal amounts of
Offered Securities they have purchased hereunder, and not joint.
The Company and the Underwriters agree that it would not be just
or equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 7 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained
herein shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
8. Termination. This Agreement shall be subject to termination,
by notice given by the Manager to the Company, if (a) after the execution and
delivery of the Underwriting Agreement and prior to the Closing Date (i)
trading generally shall have been suspended or materially limited on or by, as
the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have been
suspended on any exchange or in any over-the-counter market, (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities, or (iv) there shall
have occurred any outbreak or escalation of hostilities or any change in
financial markets or any calamity or crisis that, in the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a)(i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable
to market the Offered Securities on the terms and in the manner contemplated
in the Prospectus.
9. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Underwriters'
Securities that it has or they have agreed to purchase hereunder on such date,
and the aggregate amount of Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Underwriters' Securities to
be purchased on such date, the other Underwriters shall be obligated severally
in the proportions that the amount of Underwriters' Securities set forth
opposite their respective names above bears to the aggregate amount of
Underwriters' Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Underwriters' Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Underwriters' Securities
that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of
such amount of Underwriters' Securities without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Underwriters' Securities and the aggregate amount of
Underwriters' Securities with respect to which such default occurs is more
than one-tenth of the aggregate amount of Underwriters' Securities to be
purchased on such date, and arrangements satisfactory to the Manager and the
Company for the purchase of such Underwriters' Securities are not made within
36 hours after such default, this Agreement shall terminate without liability
on the part of any non-defaulting Underwriter or the Company. In any such
case either the Manager or the Company shall have the right to postpone the
Closing Date but in no event for longer then seven days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any
of them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill any of the conditions of this Agreement,
or if for any reason the Company shall be unable to perform its obligations
under this Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to themselves,
severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering of the Offered Securities.
10. Miscellaneous. The Underwriting Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
Exhibit A
Opinion of General Counsel
of the Company
The opinion of General Counsel of the Company, to be delivered
pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect
that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power and authority to
own its properties and conduct its business as described in the
Prospectus as amended or supplemented;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or disability by
reason of failure to be so qualified in any such jurisdiction;
(iv) Each subsidiary of the Company has been duly incorporated
and is validly existing as a corporation in good standing under the laws
of its jurisdiction of incorporation; and all of the issued shares of
capital stock of each such subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and nonassessable, and
(except for directors' qualifying shares and except as otherwise set
forth in ______________________) are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims;
(v) To the best of such counsel's knowledge, without
independent inquiry, the Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them, in
each case free and clear of all liens, encumbrances and defects except
such as are described in the Prospectus or such as do not
materially affect the business of the Company and its subsidiaries,
taken as a whole; and any material real property and buildings held
under lease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases with such exceptions as do not
materially affect the business of the Company and its
subsidiaries, taken as a whole;
(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries is a
party or of which any property of the Company or any of the Subsidiaries
is the subject which such counsel has reasonable cause to believe
could individually or in the aggregate have a material adverse effect on
the consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, taken as a whole; and, to
the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(vii) This Agreement with respect to the Offered Securities has
been duly authorized, executed and delivered by the Company;
(viii) The Offered Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Offered Securities and the Indenture conform to
the descriptions thereof in the Prospectus as amended or
supplemented;
(ix) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(x) The issue and sale of the Offered Securities and the
compliance by the Company with all of the provisions of the Offered
Securities, the Indenture and this Agreement and the consummation of the
transactions herein and therein contemplated will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries is bound or to which any of the property or
assets of the Company or any of the Subsidiaries is subject, nor will
such actions result in any violation of the provisions of the
Certificate of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental agency
or body having jurisdiction over the Company or any of the Subsidiaries
or any of their properties (in giving the opinion in this clause, such
counsel need express no opinion as to the validity or legality of this
Agreement);
(xi) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body is required for the issue and sale of the Offered Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, except such as have been obtained
under the Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters;
(xii) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion), when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder; and such counsel
has no reason to believe that any of such documents, when such documents
became effective or were so filed, as the case may be, contained, in the
case of a registration statement which became effective under the
Act, an untrue statement of a material fact or omitted to state a
material fact required to e stated therein or necessary to make the
statements therein not misleading, or, in the case of other documents
which were filed under the Act or the Exchange Act with the Commission,
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
documents were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Time the Securities are Delivered for the
Offered Securities (other than the financial statements and related
schedules and other financial information therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time
the Securities are Delivered (other than the financial statements and
related schedules and other financial information therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time the Securities are Delivered (other than the financial
statements and related schedules and other financial information
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of the Time
the Securities are Delivered, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time the Securities
are Delivered (other than the financial statements and related schedules
and other financial information therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed or any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be incorporated by reference into
the Prospectus as amended or supplemented or required to be described in
the Registration Statement or the Prospectus as amended or supplemented
which are not filed or incorporated by reference or described as
required.
In rendering such opinion, such counsel may rely, without
independent investigation, upon an opinion or opinions as to laws of any
jurisdiction other than the United States or the State of Louisiana, provided
that (1) each such local counsel is acceptable to the Representatives, (2)
such reliance is expressly authorized by each opinion so relied upon and a
copy of each such opinion is delivered to the Representatives and is in form
and substance satisfactory to the Representatives and their counsel, and (3)
counsel shall state in their opinion that they believe that they and the
Underwriters are justified in relying thereon. With respect to subparagraph
(xiii) of paragraph (c) above, such counsel may state that his opinion and
belief are based upon his participation and the participation of his staff in
the preparation of the Registration Statement and Prospectus and review and
discussion of the information furnished therein;
Exhibit B
Opinion of Davis Polk & Wardwell,
Counsel for the Company
The opinion of Davis Polk & Wardwell, independent counsel for the
Company, to be delivered pursuant to Section 4(d) of the Underwriting
Agreement shall be to the effect that:
(i) This Agreement has been duly authorized, executed and
delivered by the Company;
(ii) The Offered Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute valid and
binding obligations of the Company entitled to the benefits provided by
the Indenture; and the Offered Securities and the Indenture conform to
the descriptions thereof in the Prospectus as amended or
supplemented;
(iii) The Indenture has been duly authorized, executed and
delivered by the parties thereto and constitutes a valid and binding
instrument, enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has been duly
qualified under the Trust Indenture Act;
(iv) No consent, approval, authorization, order, registration
or qualification of or with any such court or governmental agency or
body of the United States or the State of New York is required for the
issue and sale of the Offered Securities or the consummation by the
Company of the transactions contemplated by this Agreement or the
Indenture except such as have been obtained under the Act and the
Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Securities by the Underwriters;
(v) The documents incorporated by reference in the Prospectus
as amended or supplemented (other than the financial statements and
related schedules and other financial information therein, as to which
such counsel need express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied as to form
in all material respects with the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder; and
(vi) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Time the Securities are Delivered for the
Offered Securities (other than the financial statements and related
schedules and other financial information therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time
the Securities are Delivered (other than the financial statements and
related schedules and other financial information therein, as to which
such counsel need express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the Company prior to
the Time the Securities are Delivered (other than the financial
statements and related schedules and other financial information
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances
in which they were made, not misleading or that, as of the Time
the Securities are Delivery, either the Registration Statement or the
Prospectus as amended or supplemented or any further amendment or
supplement thereto made by the Company prior to the Time the Securities
are Delivered (other than the financial statements and related schedules
and other financial information therein, as to which such counsel need
express no opinion) contains an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and such counsel does not know of any amendment to the
Registration Statement required to be filed.
In rendering such opinion, such counsel may state that they express
no opinion as to the laws of any jurisdiction other than the United States and
the State of New York. With respect to subparagraph (vi) above, such counsel
may state that their opinion and belief are based upon their participation in
the preparation of the Registration Statement and Prospectus as amended or
supplemented and review and discussion of the information furnished therein,
but without independent check or verification thereof, except as specified.
Exhibit C
Opinion of _________________,
Counsel for the Underwriters
The opinion of ________________, counsel for the Underwriters, to be
delivered pursuant to Section 4(e) of the Underwriting Agreement shall be to
the effect that:
(i) the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
(ii) the Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable in accordance
with its terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability;
(iii) the Offered Securities have been duly authorized and, when
executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters in accordance
with the terms of the Underwriting Agreement, will be entitled to the
benefits of the Indenture and will be valid and binding obligations of the
Company, in each case enforceable in accordance with their respective
terms except as (a) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (b) rights of acceleration, if any, and the availability of
equitable remedies may be limited by equitable principles of general
applicability;
(iv) the statements in the Prospectus under the captions "Description
of Debt Securities," and "Plan of Distribution," insofar as such statements
constitute summaries of the legal matters or documents referred to therein,
fairly present the information called for with respect to such legal
matters and documents and fairly summarize the matters referred to
therein;
(v) the Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended; and
(vi) such counsel (1) believes that (except for financial statements
and schedules as to which such counsel need not express any belief and
except for that part of the Registration Statement that constitutes the
Form T-1 heretofore referred to) each part of the Registration
Statement, [when such part became effective did not, and] as of the date
such opinion is delivered, does not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (2) is
of the opinion that the Registration Statement and Prospectus (except
for financial statements and schedules included therein as to which such
counsel need not express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules and regulations
of the Commission thereunder and (3) believes that (except for financial
statements and schedules as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is delivered does not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to clause (vi) above, such counsel may state that their
opinion and belief are based upon their participation in the preparation of
the Registration Statement and the Prospectus and any amendments or
supplements thereto (other than the documents incorporated by reference) and
upon review and discussion of the contents thereof (including documents
incorporated by reference) but are without independent check or verification,
except as specified.
EXHIBIT 1.2
MURPHY OIL CORPORATION
$___,000,000
Medium-Term Notes
Due from 9 Months to __ Years from Date of Issue
DISTRIBUTION AGREEMENT
________ __, 1994
Smith Barney Inc.
1345 Avenue of the Americas
48th Floor
New York, New York 10105
J.P. Morgan Securities, Inc.
60 Wall Street
New York, NY 10260-0060
National Westminster Bank Plc, New York Branch
175 Water Street
20th Floor
New York, NY 10038
Dear Sirs:
Murphy Oil Corporation, a Delaware corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale
from time to time by the Company of up to $___,000,000 (or the equivalent
thereof in one or more foreign currencies or composite currencies) aggregate
initial offering price of its medium-term notes due from 9 months to __ years
from date of issue (the "Notes"). The Notes will be issued under an Indenture
dated as of _______________________, 1994 (the "Indenture") between the
Company and Chemical Bank, as Trustee (the "Trustee"), and will have the
maturities, interest rates, redemption provisions, if any, and other terms as
set forth in supplements to the Basic Prospectus referred to below.
The Company hereby appoints Smith Barney Inc. and J.P. Morgan
Securities Inc. and National Westminster Bank Plc, New York Branch
(individually, an "Agent" and collectively, the "Agents") as its exclusive
agents, subject to Section 12, for the purpose of soliciting and receiving
offers to purchase Notes from the Company by others and, on the basis of the
representations and warranties herein contained, but subject to the terms and
conditions herein set forth, each Agent agrees to use reasonable efforts to
solicit and receive offers to purchase Notes upon terms acceptable to the
Company at such times and in such amounts as the Company shall from time to
time specify. In addition, any Agent may also purchase Notes as principal
and, if requested by such Agent, the Company will enter into a Terms Agreement
relating to such sale (a "Terms Agreement") in accordance with the provisions
of Section 2(b) hereof.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, relating
to the Notes. Such registration statement, including the exhibits thereto, as
amended at the Commencement Date (as hereinafter defined), is hereinafter
referred to as the "Registration Statement." The Company proposes to file
with the Commission from time to time, pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), supplements to the
prospectus included in the Registration Statement that will describe certain
terms of the Notes. The prospectus in the form in which it appears in the
Registration Statement is hereinafter referred to as the "Basic Prospectus."
The term "Prospectus" means the Basic Prospectus together with the prospectus
supplement or supplements (each a "Prospectus Supplement") specifically
relating to Notes, as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424. As used herein, the terms "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "supplement," "amendment" and "amend" as used
herein shall include all documents deemed to be incorporated by reference in
the Prospectus that are filed subsequent to the date of the Basic Prospectus
by the Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act").
1. Representations and Warranties. The Company represents and
warrants to and agrees with each Agent as of the Commencement Date, as of each
date on which an Agent solicits offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase
by an Agent as principal, pursuant to a Terms Agreement or otherwise), as of
each date the Company issues and delivers Notes and as of each date the
Registration Statement or the Basic Prospectus is amended or supplemented, as
follows (it being understood that such representations, warranties and
agreements shall be deemed to relate to the Registration Statement, the Basic
Prospectus and the Prospectus, each as amended or supplemented to each such
date):
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Exchange Act and incorporated by reference in the Prospectus complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder, (ii) each
part of the Registration Statement, when such part became effective, did not
contain, and each such part, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and the
Prospectus comply, and, as amended or supplemented, if applicable, will comply
in all material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does not
contain and, as amended or supplemented, if applicable, will not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except that (1) the representations and warranties
set forth in this Section 1(b) do not apply (A) to statements or omissions in
the Registration Statement or the Prospectus based upon information relating
to an Agent furnished to the Company in writing by such Agent expressly for
use therein or (B) to that part of the Registration Statement that constitutes
the Statement of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee
and (2) the representations and warranties set forth in clauses (iii) and (iv)
above, when made as of the Commencement Date or as of any date on which an
Agent solicits offers to purchase Notes or on which the Company accepts an
offer to purchase Notes, shall be deemed not to cover information concerning
an offering of particular Notes to the extent such information will be set
forth in a supplement to the Basic Prospectus.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority to
own its property and to conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(e) Each of this Agreement and any applicable Terms Agreement has
been duly authorized, executed and delivered by the Company.
(f) The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, enforceable in
accordance with its terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the
Indenture and will be valid and binding obligations of the Company,
enforceable in accordance with their respective terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or similar
laws affecting creditors' rights generally and (ii) rights of acceleration and
the availability of equitable remedies may be limited by equitable principles
of general applicability.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement, the
Notes, the Indenture and any applicable Terms Agreement will not contravene
any provision of applicable law or the certificate of incorporation or by-laws
of the Company or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
subsidiary, and no consent, approval, authorization or order of or
qualification with any governmental body or agency is required for the
performance by the Company of its obligations under this Agreement, the Notes,
the Indenture and any applicable Terms Agreement, except such as may be
required by the securities or Blue Sky laws of the various states in
connection with the offer and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
2. Solicitations as Agent; Purchases as Principal.
(a) Solicitations as Agent. In connection with an Agent's
actions as agent hereunder, such Agent agrees to use reasonable efforts to
solicit offers to purchase Notes upon the terms and conditions set forth in
the Prospectus as then amended or supplemented.
The Company reserves the right, in its sole discretion, to
instruct the Agents to suspend at any time, for any period of time or
permanently, the solicitation of offers to purchase Notes. Upon receipt of at
least one business day's prior notice from the Company, the Agents will
forthwith suspend solicitations of offers to purchase Notes from the Company
until such time as the Company has advised the Agents that such solicitation
may be resumed. While such solicitation is suspended, the Company shall not be
required to deliver any certificates, opinions or letters in accordance with
Sections 5(a), 5(b) and 5(c); provided, however, that if the Registration
Statement or Prospectus is amended or supplemented during the period of
suspension (other than by an amendment or supplement providing solely for a
change in the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters as such Agent may request.
The Company agrees to pay to each Agent, as consideration for the
sale of each Note resulting from a solicitation made or an offer to purchase
received by such Agent, a commission in the form of a discount from the
purchase price of such Note equal to the percentage set forth below of the
purchase price of such Note:
Term Commission Rate
----- ---------------
From 9 months to less than 1 year . %
From 1 year to less than 18 months . %
From 18 months to less than 2 years . %
From 2 years to less than 3 years . %
From 3 years to less than 4 years . %
From 4 years to less than 5 years . %
From 5 years to less than 6 years . %
From 6 years to less than 7 years . %
From 7 years to less than 10 years . %
From 10 years to less than 15 years . %
From 15 years to and including __ years . %
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the
sole right to accept offers to purchase Notes and may reject any offer in
whole or in part. Each Agent shall have the right to reject any offer to
purchase Notes that it considers to be unacceptable, and any such rejection
shall not be deemed a breach of its agreements contained herein. The
procedural details relating to the issue and delivery of Notes sold by the
Agents as agents and the payment therefor shall be as set forth in the
Administrative Procedures (as hereinafter defined).
(b) Purchases as Principal. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms of this Agreement and, if
requested by such Agent, the Company will enter into a Terms Agreement that
will provide for the sale of such Notes to and the purchase thereof by such
Agent. Each Terms Agreement will be substantially in the form of Exhibit A
hereto but may take the form of an exchange of any form of written
telecommunication between such Agent and the Company.
An Agent's commitment to purchase Notes as principal, whether
pursuant to a Terms Agreement or otherwise, shall be deemed to have been made
on the basis of the representations and warranties of the Company herein
contained and shall be subject to the terms and conditions herein set forth.
Each agreement by an Agent to purchase Notes as principal (whether or not set
forth in a Terms Agreement) shall specify the principal amount of Notes to be
purchased by such Agent pursuant thereto, the maturity date of such Notes, the
price to be paid to the Company for such Notes, the interest rate and interest
rate formula, if any, applicable to such Notes and any other terms of such
Notes. Each such agreement shall also specify any requirements for officers'
certificates, opinions of counsel and letters from the independent public
accountants of the Company pursuant to Section 4 hereof. A Terms Agreement
may also specify certain provisions relating to the reoffering of such
Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery
of and payment for such Notes. Unless otherwise specified in a Terms
Agreement, the procedural details relating to the issue and delivery of Notes
purchased by an Agent as principal and the payment therefor shall be as set
forth in the Administrative Procedures. Each date of delivery of and payment
for Notes to be purchased by an Agent as principal, whether pursuant to a
Terms Agreement or otherwise, is referred to herein as a "Settlement Date."
(c) Administrative Procedures. The Agents and the Company agree
to perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto
as Exhibit B) (the "Administrative Procedures"), as amended from time to time.
The Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(d) Delivery. The documents required to be delivered by Section
4 of this Agreement as a condition precedent to the Agents' obligations to
begin soliciting offers to purchase Notes as agents of the Company shall be
delivered at the office of Cahill Gordon & Reindel, counsel for the Agents,
not later than __ p.m., New York time, on the date hereof, or at such other
time and/or place as the Agents and the Company may agree upon in writing, but
in no event later than the day prior to the earlier of (i) the date on which
the Agents begin soliciting offers to purchase Notes and (ii) the first date
on which the Company accepts any offer by an Agent to purchase Notes as
principal. The date of delivery of such documents is referred to herein as
the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
(a) Prior to the termination of the offering of the Notes
pursuant to this Agreement or any Terms Agreement, the Company will not file
any Prospectus Supplement relating to the Notes or any amendment to the
Registration Statement unless the Company has previously furnished to the
Agents copies thereof for their review and will not file any such proposed
supplement or amendment to which the Agents reasonably object; provided,
however, that (i) the foregoing requirement shall not apply to any of the
Company's periodic filings with the Commission required to be filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, copies of which
filings the Company will cause to be delivered to the Agents promptly after
being transmitted for filing with the Commission and (ii) any Prospectus
Supplement that merely sets forth the terms or a description of particular
Notes shall only be reviewed and approved by the Agent or Agents offering such
Notes. Subject to the foregoing sentence, the Company will promptly cause
each Prospectus Supplement to be filed with or transmitted for filing to the
Commission in accordance with Rule 424(b) under the Securities Act. The
Company will promptly advise the Agents (i) of the filing of any amendment or
supplement to the Basic Prospectus (except that notice of the filing of an
amendment or supplement to the Basic Prospectus that merely sets forth the
terms or a description of particular Notes shall only be given to the Agent or
Agents offering such Notes), (ii) of the filing and effectiveness of any
amendment to the Registration Statement, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Basic Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts to prevent
the issuance of any such stop order or notice of suspension of qualification
and, if issued, to obtain as soon as possible the withdrawal thereof. If the
Basic Prospectus is amended or supplemented as a result of the filing under
the Exchange Act of any document incorporated by reference in the Prospectus,
no Agent shall be obligated to solicit offers to purchase Notes so long as it
is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or
condition exists as a result of which the Prospectus, as then amended or
supplemented, would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances when the Prospectus, as then amended or supplemented, is
delivered to a purchaser, not misleading, or if, in the opinion of the Agents
or in the opinion of the Company, it is necessary at any time to amend or
supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify the Agents by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it
shall so advise the Agents promptly by telephone (with confirmation in
writing) and, at its expense, shall prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in
all respects to the Agents, that will correct such statement or omission or
effect such compliance and will supply such amended or supplemented
Prospectus to the Agents in such quantities as they may reasonably request.
If any documents, certificates, opinions and letters furnished to the
Agents pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) in
connection with the preparation and filing of such amendment or supplement
are satisfactory in all respects to the Agents, upon the filing with the
Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the Agents
will resume the solicitation of offers to purchase Notes hereunder.
Notwithstanding any other provision of this Section 3(b), until the
distribution of any Notes an Agent may own as principal has been completed,
if any event described above in this paragraph (b) occurs, the Company
will, at its own expense, forthwith prepare and cause to be filed promptly
with the Commission an amendment or supplement to the Registration
Statement or Prospectus, as then amended or supplemented, satisfactory in
all respects to such Agent, will supply such amended or supplemented
Prospectus to such Agent in such quantities as it may reasonably request
and shall furnish to such Agent pursuant to paragraph (f) below and
Sections 5(a), 5(b) and 5(c) such documents, certificates, opinions and
letters as it may request in connection with the preparation and filing of
such amendment or supplement.
(c) The Company will make generally available to its security
holders and to the Agents as soon as practicable earnings statements that
satisfy the provisions of Section 11(a) of the Securities Act and the rules
and regulations of the Commission thereunder covering twelve month periods
beginning, in each case, not later than the first day of the Company's fiscal
quarter next following the "effective date" (as defined in Rule 158 under the
Securities Act) of the Registration Statement with respect to each sale of
Notes. If such fiscal quarter is the last fiscal quarter of the Company's
fiscal year, such earnings statement shall be made available not later than 90
days after the close of the period covered thereby and in all other cases
shall be made available not later than 45 days after the close of the period
covered thereby.
(d) The Company will furnish to each Agent, without charge, a
signed copy of the Registration Statement, including exhibits and all
amendments thereto, and as many copies of the Prospectus, any documents
incorporated by reference therein and any supplements and amendments thereto
as such Agent may reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and
sale under the securities or Blue Sky laws of such jurisdictions as the Agents
shall reasonably request and to maintain such qualifications for as long as
the Agents shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish
to the Agents such relevant documents and certificates of officers of the
Company relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request.
(g) During the term of this Agreement, the Company shall notify
the Agents promptly in writing of any downgrading, or of its receipt of any
notice of any intended or potential downgrading or of any review for possible
change that does not indicate the direction of the possible change, in the
rating accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and
accountants and of the Trustee and its counsel, (iv) the qualification of the
Notes under securities or Blue Sky laws in accordance with the provisions of
Section 3(e), including filing fees and the fees and disbursements of counsel
for the Agents in connection therewith and in connection with the preparation
of any Blue Sky or Legal Investment Memoranda, (v) the printing and delivery
to the Agents in quantities as hereinabove stated of copies of the
Registration Statement and all amendments thereto and of the Basic Prospectus
and any amendments or supplements thereto, (vi) the printing and delivery to
the Agents of copies of the Indenture and any Blue Sky or Legal Investment
Memoranda, (vii) any fees charged by rating agencies for the rating of the
Notes, (viii) the fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc., (ix) the
fees and disbursements of counsel for the Agents incurred in connection with
the offering and sale of the Notes, including any opinions to be rendered by
such counsel hereunder, and (x) any out-of-pocket expenses incurred by the
Agents; provided that any advertising expenses incurred by the Agents shall
have been approved by the Company.
(i) Between the date of any agreement by an Agent to purchase
Notes as principal and the Settlement Date with respect to such agreement, the
Company will not, without such Agent's prior consent, offer, sell, contract to
sell or otherwise dispose of any debt securities of the Company substantially
similar to such Notes (other than (i) the Notes that are to be sold pursuant
to such agreement, (ii) Notes previously agreed to be sold by the Company and
(iii) commercial paper issued in the ordinary course of business), except as
may otherwise be provided in such agreement.
4. Conditions of the Obligations of the Agents. Each Agent's
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the
provisions hereof and to the performance and observance by the Company of all
covenants and agreements herein contained on its part to be performed and
observed (in the case of an Agent's obligation to solicit offers to purchase
Notes, at the time of such solicitation, and, in the case of an Agent's or any
other purchaser's obligation to purchase Notes, at the time the Company
accepts the offer to purchase such Notes and at the time of purchase) and (in
each case) to the following additional conditions precedent when and as
specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Prospectus, as amended or supplemented at the time of such solicitation
or at the time such offer to purchase was made, that, in the judgment of
the relevant Agent, is material and adverse and that makes it, in
the judgment of such Agent, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New
York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade,
(B) suspension of trading of any securities of the Company on any
exchange or in any over-the-counter market, (C) declaration of a general
moratorium on commercial banking activities in New York by either
Federal or New York State authorities or (D) any outbreak or escalation
of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the relevant Agent, is material
and adverse and, in the case of any of the events described in clauses
(ii)(A) through (D), such event, singly or together with any other such
event, makes it, in the judgment of such Agent, impracticable to market
the Notes on the terms and in the manner contemplated by the Prospectus,
as amended or supplemented at the time of such solicitation or at the
time such offer to purchase was made; and
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act;
(A) except, in each case described in paragraph (i), (ii) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed to the
relevant Agent before the offer to purchase such Notes was made or (B) unless
in each case described in (ii) above, the relevant event shall have occurred
and been known to the relevant Agent before such solicitation or, in the case
of a purchase of Notes, before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any agreement
by an Agent to purchase Notes as principal, on the corresponding Settlement
Date, the relevant Agents shall have received:
(i) The opinion, dated as of such date, of General Counsel of the
Company, to the effect that:
(A) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus as
amended or supplemented;
(B) The Company has an authorized capitalization as
set forth in the Prospectus as amended or supplemented and
all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are
fully paid and non-assessable;
(C) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business,
so as to require such qualification, or is subject to no
material liability or disability by reason of failure to
be so qualified in any such jurisdiction;
(D) Each Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation; and all of
the issued shares of capital stock of each such
Subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable and (except for
directors' qualifying shares and except as otherwise set
forth in ______________) are owned directly or indirectly
by the Company, free and clear of all liens,
encumbrances, equities or claims;
(E) To the best of such counsel's knowledge, without
independent inquiry, the Company and the Subsidiaries have
good and marketable title in fee simple to all real property
owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in
the Prospectus or such as do not materially affect the
business of the Company and its subsidiaries, taken as a
whole; and any material real property and buildings held
under lease by the Company and the Subsidiaries are held
by them under valid, subsisting and enforceable leases
with such exceptions as do not materially affect the
business of the Company and its subsidiaries, taken as a
whole;
(F) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the
Company or any of the Subsidiaries is a party or of which
any property of the Company or any of the Subsidiaries is
the subject which such counsel has reasonable cause to
believe could individually or in the aggregate have a
material adverse effect on the consolidated financial
position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(G) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered
by the Company;
(H) The Notes have been duly authorized and, when
the terms of the Notes have been established in accordance
with the Indenture and when such Notes have been duly
executed, authenticated, issued and delivered in
accordance with the Indenture and the Distribution
Agreement by the Company, will constitute valid and
binding obligations of the Company entitled to the
benefits provided by the Indenture; and the Indenture
conforms and the Notes will conform to the descriptions
thereof in the Prospectus as amended or supplemented;
(I) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(J) The issue and sale of the Notes, the compliance
by the Company with all of the provisions of the Notes, the
Indenture, this Agreement and any applicable Terms
Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to
which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is
bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will
such action result in any violation of the provisions of
the Certificate of Incorporation, as amended, of the
Company or the By-Laws of the Company or any statute or
any order, rule or regulation known to such counsel of
any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries
or any of their properties (in giving the opinion in this
clause, such counsel need express no opinion as to the
validity or legality of this Agreement);
(K) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body is required for the solicitation
of offers to purchase Notes, the issue and sale of the
Notes or the consummation by the Company of the other
transactions contemplated by this Agreement, any
applicable Terms Agreement, or the Indenture, except such
as have been obtained under the Act and the Trust
Indenture Act, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in
connection with the solicitation by the Agents of offers
to purchase Notes from the Company and with purchases of
Notes by an Agent as principal, as the case may be, in
each case in the manner contemplated hereby;
(L) The documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules and other financial information therein, as to
which such counsel need express no opinion), when they
became effective or were filed with the Commission, as
the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange
Act, as applicable, and the rules and regulations of the
Commission thereunder; and such counsel has no reason to
believe that any of such documents, when they became
effective or were so filed, as the case may be,
contained, in the case of a registration statement which
became effective under the Act, an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or, in the case of
other documents which were filed under the Act or the
Exchange Act with the Commission, an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made
when such documents were so filed, not misleading; and
(M) The Registration Statement and the Prospectus as
amended and supplemented and any further amendments and
supplements thereto made by the Company prior to the date
of such opinion (other than the financial statements and
related schedules and other financial information
therein, as to which such counsel need express no
opinion) comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date,
the Registration Statement or any further amendment or
supplement thereto made by the Company prior to the date
of such opinion (other than the financial statements and
related schedules and other financial information
therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading or that, as of the date of such opinion, the
Prospectus as amended or supplemented or any further
amendment or supplement thereto made by the Company prior
to the date of such opinion (other than the financial
statements and related schedules and other financial
information therein, as to which such counsel need
express no opinion) contained an untrue statement of a
material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or
that, as of the date of such opinion, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement
thereto made by the Company prior to the date of such
opinion (other than the financial statements and related
schedules and other financial information therein, as to
which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein,
in light of the circumstances in which they were made,
not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be
filed or any contracts or other documents of a character
required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference
into the Prospectus as amended or supplemented or
required to be described in the Registration Statement or
the Prospectus as amended or supplemented which are not
filed or incorporated by reference or described as
required;
In rendering such opinion, such counsel may rely, without
independent investigation, upon an opinion or opinions as to laws of any
jurisdiction other than the United States or the State of Louisiana, provided
that (1) each such local counsel is acceptable to the Agents, (2) such
reliance is expressly authorized by each opinion so relied upon and a copy of
each such opinion so relied upon and a copy of each such opinion is delivered
to the Agents and is in form and substance satisfactory to the Agents and their
counsel and (3) counsel shall state in their opinion that they believe that
they and the Agents are justified in relying thereon. With respect to
subparagraph (H) of paragraph (i) above, such counsel may assume that (a) the
Securities will conform to the forms attached to the certificate delivered and
executed by the Secretary of the Company pursuant to this Agreement or any
applicable Terms Agreement and will be completed in accordance with the
requirements of the Indenture and the Administrative Procedures and (b) none
of the terms of the Securities not contained in the forms examined by such
counsel will violate any applicable law or be unenforceable. With respect to
subparagraph (M) of paragraph (i) above, such counsel may state that his
opinion and belief are based upon his participation and the participation of
his staff in the preparation of the Registration Statement and Prospectus and
review and discussion of the information furnished therein;
(ii) The opinion, dated as of such date, of Davis Polk &
Wardwell, or other counsel for the Company satisfactory to the Agents,
to the effect that:
(A) This Agreement and any applicable Terms Agreement
have been duly authorized, executed and delivered by the
Company;
(B) The notes have been duly authorized, and, when
the terms of the Notes have been established in accordance
with the Indenture and when such Notes have been duly
executed, authenticated, issued and delivered in
accordance with the Indenture and the Distribution
Agreement, will constitute valid and binding obligations
of the Company entitled to the benefits provided by the
Indenture; and the Indenture conforms and the Form of
Notes conforms to the descriptions thereof in the
Prospectus as amended or supplemented;
(C) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has
been duly qualified under the Trust Indenture Act;
(D) No consent, approval, authorization, order,
registration or qualification of or with any such court or
governmental agency or body of the United States or the
State of New York is required for the solicitation of
offers to purchase Notes, the issue and sale of the Notes
or the consummation by the Company of the transactions
contemplated by this Agreement, and applicable Terms
Agreement or the Indenture except such as have been
obtained under the Act and the Trust Indenture Act, and
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws in connection with the
solicitation by the Agents of offers to purchase Notes
from the Company and with purchases of Notes by an Agent
as principal, as the case may be, in each case in the
manner contemplated herein;
(E) The documents incorporated by reference in the
Prospectus as amended or supplemented (other than the
financial statements and related schedules and other
financial information therein, as to which such counsel need
express no opinion), when they became effective or were
filed with the Commission, as the case may be, complied
as to form in all material respects with the requirements
of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder; and
(F) The Registration Statement and the Prospectus as
amended or supplemented and any further amendments and
supplements thereto made by the Company prior to the date
of such opinion (other than the financial statements and
related schedules and other financial information
therein, as to which such counsel need express no
opinion) comply as to form in all material respects with
the requirements of the Act and the Trust Indenture Act
and the rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date,
the Registration Statement or any further amendment
thereto made by the Company prior to the date of such
opinion (other than the financial statements and related
schedules and other financial information therein, as to
which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as
of its date, the Prospectus as amended or supplemented or
any further amendment or supplement thereto made by the
Company prior to the date of such opinion (other than the
financial statements and related schedules and other
financial information therein, as to which such counsel
need express no opinion) contained an untrue statement of
a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or
that, as of the date of such opinion, either the
Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement
thereto made by the Company prior to the date of such
opinion (other than the financial statements and related
schedules and other financial information therein, as to
which such counsel need express no opinion) contains an
untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein,
in light of the circumstances in which they were made,
not misleading; and such counsel does not know of any
amendment to the Registration Statement required to be
filed.
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the United
States and the State of New York. With respect to subparagraph (B) of
paragraph (ii) above, such counsel may assume that (a) the Notes will conform
to the forms attached to the certificate delivered and executed by the
Secretary of the Company pursuant to this Agreement or any applicable Terms
Agreement and will be completed in accordance with the requirements of the
Indenture and the Administrative Procedures and (b) none of the terms of the
Notes not contained in the forms examined by such counsel will violate any
applicable law or be unenforceable. With respect to subparagraph (F) of
paragraph (ii) above, such counsel may state that their opinion and belief are
based upon their participation in the preparation of the Registration
Statement and Prospectus as amended or supplemented and review and discussion
of the information furnished therein, but without independent check or
verification thereof, except as specified.
(iii) The opinion, dated as of such date, of Cahill Gordon &
Reindel, counsel for the Agents, to the effect that:
(A) This Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered
by the Company;
(B) The notes have been duly authorized, and, when
the terms of the Notes have been established in accordance
with the Indenture and when such Notes have been duly
executed, authenticated, issued and delivered in
accordance with the Indenture and the Distribution
Agreement will constitute valid and binding obligations
of the Company entitled to the benefits provided by the
Indenture; and the Indenture conforms and the Form of
Notes conforms to the descriptions thereof in the
Prospectus as amended or supplemented;
(C) The Indenture has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and binding instrument, enforceable in accordance with
its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights
and to general equity principles; and the Indenture has
been qualified under the Trust Indenture Act;
(D) The statements in the Prospectus under the
captions "Description of Debt Securities" and "Plan of
Distribution," insofar as such statements constitute
summaries of the legal matters or documents referred to
therein, fairly present the information called for with
respect to such legal matters and documents and fairly
summarize the matters referred to therein;
(E) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended; and
(F) Such counsel (1) believes that (except for
financial statements and schedules as to which such counsel
need not express any belief and except for that part of the
Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration
Statement, when such part became effective did not, and
as of the date such opinion is delivered, does not
contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading,
(2) is of the opinion that the Registration Statement and
Prospectus (except for financial statements and schedules
included therein as to which such counsel need not
express any opinion) comply as to form in all material
respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (3)
believes that (except for financial statements and
schedules as to which such counsel need not express any
belief) the Prospectus as of the date such opinion is
delivered does not contain any untrue statement of a
material fact or omit to state a material fact necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
With respect to clause (F) above, such counsel may state that
their opinion and belief are based upon their participation in the
preparation of the Registration Statement and the Prospectus and any
amendments or supplements thereto (other than the documents incorporated by
reference) and upon review and discussion of the contents thereof (including
documents incorporated by reference) but are without independent check or
verification, except as specified.
The opinion of Davis Polk & Wardwell described in paragraph
(B)(ii) above shall be rendered to you at the request of the Company and shall
so state therein.
(c) On the Commencement Date and, if called for by any agreement
by an Agent to purchase Notes as principal, on the corresponding Settlement
Date, the relevant Agents shall have received a certificate, dated such
Commencement Date or Settlement Date, as the case may be, signed by an
executive officer of the Company to the effect set forth in subparagraph
(a)(iii) above and to the effect that the representations and warranties of
the Company contained herein are true and correct as of such date and that
the Company has complied with all of the agreements and satisfied all of
the conditions on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(d) On the Commencement Date and, if called for by any agreement
by an Agent to purchase Notes as principal, on the corresponding Settlement
Date, the Company's independent public accountants shall have furnished to the
relevant Agents a letter or letters, dated as of the Commencement Date or such
Settlement Date, as the case may be, in form and substance satisfactory to such
Agents containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus, as then amended or supplemented.
(e) On the Commencement Date and on each Settlement Date, the
Company shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement providing solely for a change in the interest
rates, redemption provisions, amortization schedules or maturities offered on
the Notes or for a change the Agents deem to be immaterial), the Company will
deliver or cause to be delivered forthwith to each Agent a certificate signed
by an executive officer of the Company, dated the date of such amendment or
supplement, as the case may be, in form reasonably satisfactory to the Agents,
of the same tenor as the certificate referred to in Section 4(c) relating to
the Registration Statement or the Prospectus as amended or supplemented to the
time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to
Section 5(a), the Company will furnish or cause to be furnished forthwith to
each Agent a written opinion of independent counsel for the Company. Any such
opinion shall be dated the date of such amendment or supplement, as the case
may be, shall be in a form satisfactory to the Agents and shall be of the same
tenor as the opinion referred to in Section 4(b)(i), but modified to relate
to the Registration Statement and the Prospectus as amended and supplemented
to the time of delivery of such opinion. In lieu of such opinion, counsel
last furnishing such an opinion to an Agent may furnish to each Agent a letter
to the effect that such Agent may rely on such last opinion to the same extent
as though it were dated the date of such letter (except that statements in
such last opinion will be deemed to relate to the Registration Statement and
the Prospectus as amended or supplemented to the time of delivery of such
letter.)
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred by you or any such controlling person in
connection with investigating or defending any such action or claim) caused by
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement or in any amendment thereof or the Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to such
Agent furnished to the Company in writing by such Agent expressly for use
therein.
(b) Each Agent agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the
Company to such Agent, but only with reference to information relating to such
Agent furnished to the Company in writing by such Agent expressly for use in
the Registration Statement or the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by Smith Barney
Inc. or, if Smith Barney Inc. is not an indemnified party and is not
reasonably likely to become an indemnified party, by the Agents that are
indemnified parties, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b)
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein in
connection with any offering of Notes, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the
one hand and each Agent on the other hand from the offering of such Notes or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and each Agent on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and each Agent on
the other hand in connection with the offering of such Notes shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of such Notes (before deducting expenses) received by the Company
bear to the total discounts and commissions received by each Agent in respect
thereof. The relative fault of the Company on the one hand and of each Agent
on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to this
Section 6 shall be several (in the proportion that the principal amount of the
Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities) and not joint.
(e) The Company and the Agents agree that it would not be just or
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Agents were treated as one entity for such
purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in paragraph (d) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through such Agent exceeds the amount of any damages that such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise
be available to any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and
in connection with the sale of any Notes by the Company (other than Notes sold
to an Agent as principal), each Agent is acting solely as agent of the Company
and does not assume any obligation towards or relationship of agency or trust
with any purchaser of Notes. An Agent shall make reasonable efforts to assist
the Company in obtaining performance by each purchaser whose offer to purchase
Notes has been solicited by such Agent and accepted by the Company, but such
Agent shall not have any liability to the Company in the event any such
purchase is not consummated for any reason. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted,
the Company shall hold the relevant Agent harmless against any loss, claim,
damage or liability arising from or as a result of such default and shall, in
particular, pay to such Agent the commission it would have received had such
sale been consummated.
8. Termination. This Agreement may be terminated at any time by
the Company or, as to any Agent, by the Company or such Agent upon the giving
of written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto
accrued or incurred prior to such termination. The termination of this
Agreement shall not require termination of any agreement by an Agent to
purchase Notes as principal, and the termination of any such agreement shall
not require termination of this Agreement. If this Agreement is terminated,
the provisions of the third paragraph of Section 2(a), Section 2(e), the last
sentence of Section 3(b) and Sections 3(c), 3(h), 6, 7, 9, 11 and 14 shall
survive; provided that if at the time of termination an offer to purchase
Notes has been accepted by the Company but the time of delivery to the
purchaser or its agent of such Notes has not occurred, the provisions of
Sections 2(b), 2(c), 3(a), 3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive
until such delivery has been made.
9. Representations and Indemnities to Survive. The respective
indemnity and contribution agreements, representations, warranties and other
statements of the Company, its officers and the Agents set forth in or made
pursuant to this Agreement or any agreement by an Agent to purchase Notes as
principal will remain in full force and effect, regardless of any termination
of this Agreement or any such agreement, any investigation made by or on
behalf of an Agent or the Company or any of the officers, directors or
controlling persons referred to in Section 6 and delivery of and payment for
the Notes.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to Smith Barney Inc., will be mailed,
delivered or telefaxed and confirmed at 1345 Avenue of the Americas, 48th
Floor, New York, New York 10105, Attention: ____________ (telefax number:
_________); and, if sent to J.P. Morgan Securities, Inc., will be mailed,
delivered or telefaxed and confirmed at 60 Wall Street, New York, New York
10260-0060, Attention: ________ (telefax number: ________); and, if sent to
National Westminster Bank Plc, New York Branch, will be mailed, delivered or
telefaxed and confirmed at 175 Water Street, 20th Floor, New York, New York
10038, Attention: _________ (telefax number: ________); or, if sent to the
Company, will be mailed, delivered or telefaxed and confirmed to the Company
at P.O. Box 7000, 200 Peach Street, El Dorado, Arkansas 71730, Attention:
______________ (telefax number __________).
11. Successors. This Agreement and any Terms Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors and the officers, directors and controlling persons
referred to in Section 6 and the purchasers of Notes (to the extent expressly
provided in Section 4), and no other person will have any right or obligation
hereunder.
12. Amendments. This Agreement may be amended or supplemented
if, but only if, such amendment or supplement is in writing and is signed by
the Company and each Agent; provided that the Company may from time to time,
on seven days prior written notice to the Agents but without the consent of
any Agent, amend this Agreement to add as a party hereto one or more additional
firms registered under the Exchange Act, whereupon each such firm shall become
an Agent hereunder on the same terms and conditions as the other Agents that
are parties hereto. The Agents shall sign any amendment or supplement giving
effect to the addition of any such firm as an Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and
construed in accordance with the internal laws of the State of New York.
15. Headings. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
between the Company and you.
Very truly yours,
MURPHY OIL CORPORATION
By ______________________________
Title:
The foregoing Agreement
is hereby confirmed
and accepted as of the
date first above written.
SMITH BARNEY INC.
By _______________________________
Title:
J.P. MORGAN SECURITIES INC.
By _______________________________
Title:
NATIONAL WESTMINSTER BANK Plc, New York Branch
By ________________________________
Title:
EXHIBIT A
MURPHY OIL CORPORATION
MEDIUM-TERM NOTES
TERMS AGREEMENT
_________________, 1994
Murphy Oil Corporation
200 Peach Street
El Dorado, Arkansas 71731
Attention:
Re: Distribution Agreement dated ___________, 1994
(the "Distribution Agreement")
----------------------------------------------
We agree to purchase your Medium-Term Notes having the following
terms:
[We agree to purchase, severally and not jointly, the principal
amount of Notes set forth below opposite our names:
Principal Amount
Name of Notes
---- ----------------
[Smith Barney Inc.]
[Insert syndicate list]
Total . . . . . . $
===========
The Notes shall have the following terms:]
All Notes: Fixed Rate Notes: Floating Rate Notes:
Principal amount: Interest Rate: Base rate:
Purchase price: Applicability Index maturity:
of modified
Price to public: Payment upon Spread:
acceleration:
Settlement date Spread multiplier:
and time: If yes, state
issue price: Alternate rate
Place of event spread:
delivery: Amortization
schedule: Initial interest
Specified rate:
currency:
Initial interest
Maturity date: reset date:
Initial accrual Interest reset
period OID: dates:
Total amount Interest reset
of OID: period:
Original yield Maximum interest
to maturity: rate:
Optional repayment Minimum interest
date(s): rate:
Optional redemption Interest payment
date(s): period:
Initial redemption Interest payment
date: dates:
Initial redemption Calculation agent:
percentage:
Annual redemption
percentage
decrease:
Other terms:
The provisions of Sections 1, 2(b) and 2(c) and
3 through 6, 9, 10, 11 and 14 of the Distribution Agreement
and the related definitions are incorporated by reference
herein and shall be deemed to have the same force and effect
as if set forth in full herein.
[If on the Settlement Date any one or more of
the Agents shall fail or refuse to purchase Notes that it
has or they have agreed to purchase on such date, and the
aggregate amount of Notes which such defaulting Agent or
Agents agreed but failed or refused to purchase is not
more than one-tenth of the aggregate amount of the Notes
to be purchased on such date, the other Agents shall be
obligated severally in the proportions that the amount of
Notes set forth opposite their respective names above
bears to the aggregate amount of Notes set forth opposite
the names of all such non-defaulting Agents, or in such
other proportions as _____________ may specify, to
purchase the Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase on such date;
provided that in no event shall the amount of Notes that
any Agent has agreed to purchase pursuant to this
Agreement be increased pursuant to this paragraph by an
amount in excess of one-ninth of such amount of Notes
without the written consent of such Agent. If on the
Settlement Date any Agent or Agents shall fail or refuse
to purchase Notes and the aggregate amount of Notes with
respect to which such default occurs is more than one-
tenth of the aggregate amount of Notes to be purchased on
such date, and arrangements satisfactory to ___________
and the Company for the purchase of such Notes are not
made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-
defaulting Agent or the Company. In any such case either
___________ or the Company shall have the right to
postpone the Settlement Date but in no event for longer
than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall
not relieve any defaulting Agent from liability in
respect of any default of such Agent under this
Agreement.](1)
________________
1 Delete if the transaction will not be syndicated.
This Agreement is subject to termination on the
terms incorporated by reference herein. If this Agreement
is so terminated, the provisions of Sections 3(h), 6, 9, 11
and 14 of the Distribution Agreement shall survive for the
purposes of this Agreement.
The following information, opinions,
certificates, letters and documents referred to in Section 4
of the Distribution Agreement will be required:
[NAME OF RELEVANT AGENT(S)]
By ______________________________
Title:
Accepted:
MURPHY OIL CORPORATION
By ________________________
Title:
EXHIBIT B
MURPHY OIL CORPORATION
MEDIUM-TERM NOTES
ADMINISTRATIVE PROCEDURES
_________________________________
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes (the "Notes"), on a continuous basis by
Murphy Oil Corporation (the "Company") pursuant to the Distribution Agreement,
dated as of ________, 1994 (the "Distribution Agreement") among the Company
and Smith Barney Inc., J.P. Morgan Securities and National Westminster Bank
Plc, New York Branch (the "Agents"). The Notes will be issued under an
Indenture dated as of ________, 1994 (the "Indenture") between the Company and
Chemical Bank, as trustee (the "Trustee"). In the Distribution Agreement, the
Agents have agreed to use reasonable efforts to solicit purchases of the
Notes, and the administrative procedures explained below will govern the
issuance and settlement of any Notes sold through an Agent, as agent of the
Company. An Agent, as principal, may also purchase Notes for its own account,
and if requested by such Agent, the Company and such Agent will enter into a
terms agreement (a "Terms Agreement"), as contemplated by the Distribution
Agreement. The administrative procedures explained below will govern the
issuance and settlement of any Notes purchased by an Agent, as principal,
unless otherwise specified in the applicable Terms Agreement.
The Trustee will be the Registrar, Calculation Agent, Authenticating
Agent and Paying Agent for the Notes and will perform the duties specified
herein. Each Note will be represented by either a Global Security (as defined
below) delivered to the Trustee, as agent for The Depository Trust Company
("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry
Note") or a certificate delivered to the holder thereof or a person designated
by such holder (a "Certificated Note"). Except as set forth in the Indenture,
an owner of a Book-Entry Note will not be entitled to receive a Certificated
Note.
Book-Entry Notes, which may be payable only in U.S. dollars, will be
issued in accordance with the administrative procedures set forth in Part I
hereof as they may subsequently be amended as the result of changes in DTC'S
operating procedures. Certificated Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof. Unless otherwise
defined herein, terms defined in the Indenture, the Notes or any prospectus
supplement relating to the Notes shall be used herein as therein defined.
The Company will advise the Agents in writing of the employees of
the Company with whom the Agents are to communicate regarding offers to
purchase Notes and the related settlement details.
PART I: ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, the Trustee will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to DTC, dated as of ________,
1994, and a Medium-Term Note Certificate Agreement between the Trustee and DTC,
dated as of ________, 1994 (the "MTN Certificate Agreement"), and its
obligations as a participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
Issuance: On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the Company will issue a single
global security in fully registered form
without coupons (a "Global Security")
representing up to U.S. $150,000,000 principal
amount of all such Notes that have the same
Original Issue Date, Maturity Date and other
terms. Each Global Security will be dated and
issued as of the date of its authentication by
the Trustee. Each Global Security will bear an
"Interest Accrual Date," which will be (i) with
respect to an original Global Security (or any
portion thereof), its original issuance date
and (ii) with respect to any Global Security
(or any portion thereof) issued subsequently
upon exchange of a Global Security, or in lieu
of a destroyed, lost or stolen Global Security,
the most recent Interest Payment Date to which
interest has been paid or duly provided for on
the predecessor Global Security (or if no such
payment or provision has been made, the
original issuance date of the predecessor
Global Security), regardless of the date of
authentication of such subsequently issued
Global Security. Book-Entry Notes may be
payable only in U.S. dollars. No Global
Security will represent any Certificated Note.
Denominations: Book-Entry Notes will be issued in
principal amounts of U.S. $[100,000] or any
amount in excess thereof that is an integral
multiple of U.S. $1,000. Global Securities
will be denominated in principal amounts not in
excess of U.S. $150,000,000. If one or more
Book-Entry Notes having an aggregate principal
amount in excess of $150,000,000 would, but for
the preceding sentence, be represented by a
single Global Security, then one Global
Security will be issued to represent each U.S.
$150,000,000 principal amount of such Book-
Entry Note or Notes and an additional Global
Security will be issued to represent any
remaining principal amount of such Book-Entry
Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry
Note or Notes shall be assigned the same CUSIP
number.
Preparation If any offer to purchase a Book-Entry Note is
of Pricing accepted by or on behalf of the Company,
Supplement: the Company will prepare a pricing supplement (a
"Pricing Supplement") reflecting the terms
of such Note. The Company (i) will arrange to
file 10 copies of such Pricing Supplement with
the Commission in accordance with the
applicable paragraph of Rule 424(b) under the
Act and (ii) will, as soon as possible and in
any event not later than the date on which such
Pricing Supplement is filed with the
Commission, deliver the number of copies of
such Pricing Supplement to the relevant Agent
as such Agent shall request.
In each instance that a Pricing Supplement is
prepared, the relevant Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached
(other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of the
Global Security representing such Note shall
constitute "settlement" with respect to such
Note. All offers accepted by the Company will
be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another day, which shall be no
earlier than the next Business Day.
Settlement Settlement Procedures with regard to each
Procedures: Book-Entry Note sold by the Company to or
through an Agent (unless otherwise specified
pursuant to a Terms Agreement) shall be as
follows:
A. The relevant Agent will advise
the Company by telephone that such
Note is a Book-Entry Note and of the
following settlement information:
1. Principal amount.
2. Maturity Date.
3. In the case of a Fixed
Book-Entry Note, the Interest Rate,
whether such Note will pay interest
annually or semiannually and whether
such Note is an Amortizing Note,
and, if so, the amortization
schedule, or, in the case of a
Floating Rate Book-Entry Note, the
Initial Interest Rate (if known at
such time), Interest Payment
Date(s), Interest Payment Period,
Calculation Agent, Base Rate, Index
Maturity, Interest Reset Period,
Initial Interest Reset Date,
Interest Reset Dates, Spread or
Spread Multiplier (if any), Minimum
Interest Rate (if any), Maximum
Interest Rate (if any) and the
Alternate Rate Event Spread (if
any).
4. Redemption or repayment
provisions (if any).
5. Settlement date and time
(Original Issue Date).
6. Interest Accrual Date.
7. Price.
8. Agent's commission (if any)
determined as provided in the
Distribution Agreement.
9. Whether the Note is an Original
Issue Discount Note (an "OID Note"),
and if it is an OID Note, the total
amount of OID, the yield to
maturity, the initial accrual period
OID and the applicability of
Modified Payment upon Acceleration
(and, if so, the Issue Price).
10. Whether the Note is a PERLS
Note, and if it is a PERLS Note,
the Denominated Currency, the
Indexed Currency or Currencies, the
Payment Currency, the Exchange Rate
Agent, the Reference Dealers, the
Face Amount, the Fixed Amount of
each Indexed Currency, the Aggregate
Fixed Amount of each Indexed
Currency and the Authorized
Denominations (if other than U.S.
dollars).
11. Whether the Note is a
Renewable Note, and if it is a
Renewable Note, the Initial
Maturity Date and the Final
Maturity Date.
12. Whether the Company has the
option to extend the Original Maturity
Date of the Note, and, if so, the Final
Maturity Date of such Note.
13. Whether the Company has
the option to reset the Interest Rate,
the Spread or the Spread Multiplier of
the Note.
14. Any other applicable terms.
B. The Company will advise the
Trustee by telephone or electronic
transmission (confirmed in writing at any
time on the same date) of the information
set forth in Settlement Procedure "A"
above. The Trustee will then assign a
CUSIP number to the Global Security
representing such Note and will notify the
Company and the relevant Agent of such
CUSIP number by telephone as soon as
practicable.
C. The Trustee will enter a
pending deposit message through
DTC's Participant Terminal System,
providing the following settlement
information to DTC, the relevant Agent and
Standard & Poor's Corporation:
1. The information set forth in
Settlement Procedure "A".
2. The Initial Interest Payment
Date for such Note, the number of
days by which such date succeeds the
related DTC Record Date (which in
the case of Floating Rate Notes
which reset daily or weekly, shall
be the date five calendar days
immediately preceding the applicable
Interest Payment Date and, in the
case of all other Notes, shall be
the Record Date as defined in the
Note) and, if known, the amount of
interest payable on such Initial
Interest Payment Date.
3. The CUSIP number of the Global
Security representing such Note.
4. Whether such Global Security
will represent any other Book-Entry
Note (to the extent known at such
time).
5. Whether such Note is an
Amortizing Note (by an appropriate
notation in the comments field of
DTC's Participant Terminal System).
6. The number of
participant accounts to be
maintained by DTC on behalf of the
relevant Agent and the Trustee.
D. The Trustee will complete and
authenticate the Global Security
representing such Note.
E. DTC will credit such Note to the
Trustee's participant account at
DTC.
F. The Trustee will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC to (i)
debit such Note to the Trustee's
participant account and credit such Note
to the relevant Agent's participant
account and (ii) debit such Agent's
settlement account and credit the
Trustee's settlement account for an amount
equal to the price of such Note less such
Agent's commission (if any). The entry of
such a deliver order shall constitute a
representation and warranty by the Trustee
to DTC that (a) the Global Security
representing such Book-Entry Note has been
issued and authenticated and (b) the
Trustee is holding such Global Security
pursuant to the MTN Certificate Agreement.
G. Unless the relevant Agent is the end
purchaser of such Note, such Agent will
enter an SDFS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to such Agent's
participant account and credit such Note
to the participant accounts of the
Participants with respect to such Note and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of such Agent for an
amount equal to the price of such Note.
H. Transfers of funds in accordance
with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be
settled in accordance with SDFS operating
procedures in effect on the settlement
date.
I. The Trustee will credit to the
account of the Company maintained at [NAME
OF ISSUER'S BANK], New York, New York, in
immediately available funds the amount
transferred to the Trustee in accordance
with Settlement Procedure "F".
J. Unless the relevant Agent is the end
purchaser of such Note, such Agent will
confirm the purchase of such Note to the
purchaser either by transmitting to the
Participants with respect to such Note a
confirmation order or orders through DTC's
institutional delivery system or by
mailing a written confirmation to such
purchaser.
K. Monthly, the Trustee will send
to the Company a statement setting forth
the principal amount of Notes outstanding
as of that date under the Indenture and
setting forth a brief description of any
sales of which the Company has advised the
Trustee that have not yet been settled.
Settlement For sales by the Company of Book-Entry Notes
Procedures to or through an Agent (unless otherwise specified
Timetable: pursuant to a Terms Agreement) for settlement on
the first Business Day after the sale date,
Settlement Procedures "A" through "J" set forth
above shall be completed as soon as possible but
not later than the respective times in New York
City set forth below:
Settlement
Procedure_ Time
A 11:00 A.M. on sale date
B 12:00 Noon on sale date
C 2:00 P.M. on sale date
D 9:00 A.M. on settlement
date
E 10:00 A.M. on settlement
date
F-G 2:00 P.M. on settlement
date
H 4:45 P.M. on settlement
date
I-J 5:00 P.M. on settlement
date
If a sale is to be settled more than a Business Day
after the sale date, Settlement Procedures "A",
"B" and "C" shall be completed as soon as
practicable but no later than 11:00 A.M., 12:00
Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date. If the
Initial Interest Rate for a Floating Rate
Book-Entry Note has not been determined at the time
that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be
completed as soon as such rate has been
determined but no later than 12:00 Noon and 2:00
P.M., respectively, on the first Business Day
before the settlement date. Settlement
Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing
deadlines and in the other events specified in
the SDFS operating procedures in effect on the
settlement date.
If settlement of a Book-Entry Note is
rescheduled or cancelled, the Trustee, after
receiving notice from the Company or the
relevant Agent, will deliver to DTC, through
DTC's Participant Terminal System, a
cancellation message to such effect by no later
than 2:00 P.M. on the Business Day immediately
preceding the scheduled settlement date.
Failure If the Trustee fails to enter an
to Settle: SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement Procedure
"F", the Trustee may deliver to DTC, through
DTC's Participant Terminal System, as soon as
practicable a withdrawal message instructing DTC
to debit such Note to the Trustee's participant
account, provided that the Trustee's participant
account contains a principal amount of the
Global Security representing such Note that is
at least equal to the principal amount to be
debited. If a withdrawal message is processed
with respect to all the Book-Entry Notes
represented by a Global Security, the Trustee
will mark such Global Security "cancelled," make
appropriate entries in the Trustee's records and
send such cancelled Global Security to the
Company. The CUSIP number assigned to such
Global Security shall, in accordance with the
procedures of the CUSIP Service Bureau of
Standard & Poor's Corporation, be cancelled and
not immediately reassigned. If a withdrawal
message is processed with respect to one or
more, but not all, of the Book-Entry Notes
represented by a Global Security, the Trustee
will exchange such Global Security for two
Global Securities, one of which shall represent
such Book-Entry Note or Notes and shall be
cancelled immediately after issuance and the
other of which shall represent the remaining
Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the
CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Note is
not timely paid to the Participants with respect
to such Note by the beneficial purchaser thereof
(or a person, including an indirect participant
in DTC, acting on behalf of such purchaser),
such Participants and, in turn, the relevant
Agent may enter SDFS deliver orders through
DTC's Participant Terminal System reversing the
orders entered pursuant to Settlement Procedures
"F" and "G", respectively. Thereafter, the
Trustee will deliver the withdrawal message and
take the related actions described in the
preceding paragraph.
Notwithstanding the foregoing, upon any failure
to settle with respect to a Book-Entry Note, DTC
may take any actions in accordance with its SDFS
operating procedures then in effect.
In the event of a failure to settle with respect
to one or more, but not all, of the Book-Entry
Notes to have been represented by a Global
Security, the Trustee will provide, in
accordance with Settlement Procedures "D" and
"F", for the authentication and issuance of a
Global Security representing the Book-Entry
Notes to be represented by such Global Security
and will make appropriate entries in its
records.
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as Registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Certificated Note will bear an Original
Issue Date, which will be (i) with respect
to an original Certificated Note (or any portion
thereof), its original issuance date (which will
be the settlement date) and (ii) with respect to
any Certificated Note (or portion thereof)
issued subsequently upon transfer or exchange of
a Certificated Note or in lieu of a destroyed,
lost or stolen Certificated Note, the original
issuance date of the predecessor Certificated
Note, regardless of the date of authentication
of such subsequently issued Certificated Note.
Preparation If any offer to purchase a Certificated Note
of Pricing is accepted by or on behalf of the Company,
Supplement: the Company will prepare a Pricing Supplement
reflecting the terms of such Note. The Company
(i) will arrange to file 10 copies of such
Pricing Supplement with the Commission in
accordance with the applicable paragraph of Rule
424(b) under the Act and (ii) will, as soon as
possible and in any event not later than the
date on which such Pricing Supplement is filed
with the Commission, deliver the number of
copies of such Pricing Supplement to the
relevant Agent as such Agent shall request.
In each instance that a Pricing Supplement is
prepared, the relevant Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements, and
the Prospectuses to which they are attached
(other than those retained for files), will be
destroyed.
Settlement: The receipt by the Company of immediately
available funds in exchange for an authenticated
Certificated Note delivered to the relevant
Agent and such Agent's delivery of such Note
against receipt of immediately available funds
shall constitute "settlement" with respect to
such Note. All offers accepted by the Company
will be settled on the fifth Business Day next
succeeding the date of acceptance pursuant to
the timetable for settlement set forth below,
unless the Company and the purchaser agree to
settlement on another date, which date shall be
no earlier than the next Business Day.
Settlement Settlement Procedures with regard to
Procedures: each Certificated Note sold by the Company
to or through an Agent (unless otherwise
specified pursuant to a Terms Agreement) shall
be as follows:
A. The relevant Agent will advise the
Company by telephone that such Note is a
Certificated Note and of the following
settlement information:
1. Name in which such Note is to
be registered ("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal and
interest.
3. Taxpayer identification number
of the Registered Owner (if available).
4. Principal amount.
5. Maturity Date.
6. In the case of a Fixed Rate
Certificated Note, the Interest Rate,
whether such Note will pay interest
annually or semiannually and whether such
Note is an Amortizing Note and, if so, the
amortization schedule, or, in the case of
a Floating Rate Certificated Note, the
Initial Interest Rate (if known at such
time), Interest Payment Date(s), Interest
Payment Period, Calculation Agent, Base
Rate, Index Maturity, Interest Reset
Period, Initial Interest Reset Date,
Interest Reset Dates, Spread or Spread
Multiplier (if any), Minimum Interest Rate
(if any), Maximum Interest Rate (if any)
and the Alternate Rate Event Spread (if
any).
7. Redemption or repayment provisions
(if any).
8. Settlement date and time (Original
Issue Date).
9. Interest Accrual Date.
10. Price.
11. Agent's commission (if any) determined
as provided in the Distribution Agreement.
12. Denominations.
13. Specified Currency.
14. Whether the Note is an OID
Note, and if it is an OID Note, the total
amount of OID, the yield to maturity, the
initial accrual period OID and the
applicability of Modified Payment upon
Acceleration (and if so, the Issue Price).
15. Whether the Note is a PERLS
Note, and if it is a PERLS Note, the
Denominated Currency, the Indexed Currency
or Currencies, the Payment Currency, the
Exchange Rate Agent, the Reference
Dealers, the Face Amount, the Fixed Amount
of each Indexed Currency, the Aggregate
Fixed Amount of each Indexed Currency and
the Authorized Denominations (if other
than U.S. dollars).
16. Whether the Note is a Renewable Note,
and if it is a Renewable Note, the Initial
Maturity Date and the Final Maturity Date.
17. Whether the Company has the option to
extend the Original Maturity Date of the
Note, and, if so, the Final Maturity Date
of such Note.
18. Whether the Company has the option to
reset the Interest Rate, the Spread or the
Spread Multiplier of the Note.
19. Any other applicable terms.
B. The Company will advise the Trustee by
telephone or electronic transmission (confirmed
in writing at any time on the same date) of the
information set forth in Settlement Procedure
"A" above.
C. The Company will have delivered to the
Trustee a pre-printed four-ply packet for such
Note, which packet will contain the following
documents in forms that have been approved by
the Company, the relevant Agent and the Trustee:
1. Note with customer confirmation.
2. Stub One - For the Trustee.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. The Trustee will complete such Note and
authenticate such Note and deliver it (with the
confirmation) and Stubs One and Two to the
relevant Agent, and such Agent will acknowledge
receipt of the Note by stamping or otherwise
marking Stub One and returning it to the
Trustee. Such delivery will be made only
against such acknowledgment of receipt and
evidence that instructions have been given by
such Agent for payment to the account of the
Company at [NAME OF ISSUER'S BANK], New York,
New York, or to such other account as the
Company shall have specified to such Agent and
the Trustee, in immediately available funds, of
an amount equal to the price of such Note less
such Agent's commission (if any). In the event
that the instructions given by such Agent for
payment to the account of the Company are
revoked, the Company will as promptly as
possible wire transfer to the account of such
Agent an amount of immediately available funds
equal to the amount of such payment made.
E. Unless the relevant Agent is the end
purchaser of such Note, such Agent will
deliver such Note (with confirmation) to the
customer against payment in immediately
available funds. Such Agent will obtain the
acknowledgment of receipt of such Note by
retaining Stub Two.
F. The Trustee will send Stub Three to the
Company by first-class mail. Monthly, the
Trustee will also send to the Company a
statement setting forth the principal amount
of the Notes outstanding as of that date
under the Indenture and setting forth a brief
description of any sales of which the Company
has advised the Trustee that have not yet
been settled.
Settlement For sales by the Company of Certificated Notes
Procedures to or through an Agent (unless otherwise specified
Timetable: pursuant to a Terms Agreement), Settlement
Procedures "A" through "F" set forth above shall be
completed on or before the respective
times in New York City set forth below:
Settlement
Procedure_ Time
---------- ----
A 2:00 P.M. on day before
settlement date
B 3:00 P.M. on day before
settlement date
C-D 2:15 P.M. on settlement
date
E 3:00 P.M. on settlement
date
F 5:00 P.M. on settlement
date
Failure
to Settle: If a purchaser fails to accept delivery of
and make payment for any Certificated
Note, the relevant Agent will notify the
Company and the Trustee by telephone and
return such Note to the Trustee. Upon
receipt of such notice, the Company will
immediately wire transfer to the account of
such Agent an amount equal to the price of
such Note less such Agent's commission in
respect of such Note (if any). Such wire
transfer will be made on the settlement
date, if possible, and in any event not
later than the Business Day following the
settlement date. If the failure shall have
occurred for any reason other than a default
by such Agent in the performance of its
obligations hereunder and under the
Distribution Agreement, then the Company
will reimburse such Agent or the Trustee, as
appropriate, on an equitable basis for its
loss of the use of the funds during the
period when they were credited to the
account of the Company. Immediately upon
receipt of the Certificated Note in respect
of which such failure occurred, the Trustee
will mark such Note "cancelled," make
appropriate entries in the Trustee's records
and send such Note to the Company.
EXHIBIT 4.1
========================================================
MURPHY OIL CORPORATION
as Issuer
and
CHEMICAL BANK
as Trustee
Indenture
Dated as of , 1994
__________
========================================================
CROSS REFERENCE SHEET*
____________
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture to be
dated as of ______, 1994 between MURPHY OIL CORPORATION and CHEMICAL BANK,
as Trustee:
Section of the Act Section of Indenture
310(a)(1) and (2)............................... 5.8
310(a)(3) and (4)............................... Inapplicable
310(b).......................................... 5.12 and 5.9(a),(b) and (d)
310(c).......................................... Inapplicable
311(a).......................................... 5.13
311(b).......................................... 5.13
311(c).......................................... Inapplicable
312(a ).......................................... 3.6
312(b).......................................... 3.6
312(c).......................................... 4.2(c)
313(a).......................................... 3.8
313(b)(1)....................................... Inapplicable
313(b)(2)....................................... 3.8
313(c).......................................... 3.8
313(d).......................................... 3.8
314(a).......................................... 3.7
314(b).......................................... Inapplicable
314(c)(1) and (2)............................... 10.5
314(c)(3)....................................... Inapplicable
314(d).......................................... Inapplicable
314(e).......................................... 10.5
314(f).......................................... Inapplicable
315(a), (c) and (d)............................. 5.1
315(b).......................................... 4.11
315(e).......................................... 4.12
316(a)(1)....................................... 4.9
316(a)(2)....................................... Not required
316(a) (last sentence).......................... 6.4
316(b).......................................... 4.7
317(a).......................................... 4.2
317(b).......................................... 3.4(a) and (b)
318(a).......................................... 10.7]
- ----------
* This Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
__________
Page
PARTIES...........................................................
RECITALS..........................................................
Authorization of Indenture...............................
Compliance with Legal Requirements.......................
Purpose of and Consideration for Indenture...............
ARTICLE ONE
DEFINITIONS.
SECTION 1.1. Certain Terms Defined..............................
Board of Directors.................................
Business Day.......................................
Capital Lease Obligations..........................
Capital Stock......................................
Commission.........................................
Consolidated Net Tangible Assets...................
Corporate Trust Office.............................
Debt...............................................
Depositary.........................................
Event of Default...................................
Funded Indebtedness................................
Global Security....................................
Holder, holder of securities, Securityholder.......
Indebtedness.......................................
Indenture..........................................
Interest...........................................
Issuer.............................................
Issuer Order.......................................
Mortgage...........................................
Officers' Certificate..............................
Opinion of Counsel.................................
Original Issue Discount Security...................
Outstanding........................................
Periodic Offering..................................
Person.............................................
Principal..........................................
Principal Property.................................
Responsible Officer................................
Restricted Subsidiary..............................
Sale and Lease-back Transaction....................
Security or Securities.............................
Senior Funded Indebtedness.........................
Senior Indebtedness................................
Stockholders' Equity...............................
Subsidiary.........................................
Trust Indenture Act of 1939........................
Trustee............................................
U.S. Government Obligations........................
vice president.....................................
Yield to Maturity..................................
ARTICLE TWO
SECURITIES.
SECTION 2.1. Forms Generally....................................
SECTION 2.2. Form of Trustee's Certificate
of Authentication..........................
SECTION 2.3. Amount Unlimited; Issuable in Series...............
SECTION 2.4. Authentication and Delivery of
Securities.................................
SECTION 2.5. Execution of Securities............................
SECTION 2.6. Certificate of Authentication......................
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest...........
SECTION 2.8. Registration, Transfer and Exchange................
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities......................
SECTION 2.10. Cancellation of Securities;
Disposition Thereof........................
SECTION 2.11. Temporary Securities...............................
SECTION 2.12 Computation of Interest............................
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE.
SECTION 3.1. Payment of Principal and Interest..................
SECTION 3.2. Offices for Payments, etc..........................
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee
SECTION 3.4. Paying Agents......................................
SECTION 3.5. Certificate of the Issuer..........................
SECTION 3.6. Securityholders' Lists.............................
SECTION 3.7. Reports by the Issuer..............................
SECTION 3.8. Reports by the Trustee.............................
SECTION 3.9. Limitation on Liens................................
SECTION 3.10. Limitation on Sale and Lease-Back Transactions.....
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT.
SECTION 4.1. Event of Default Defined; Acceleration
of Maturity; Waiver of Default.............
SECTION 4.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt.....................
SECTION 4.3. Application of Proceeds............................
SECTION 4.4. Suits for Enforcement..............................
SECTION 4.5. Restoration of Rights on Abandonment
of Proceedings.............................
SECTION 4.6. Limitations on Suits by
Securityholders............................
SECTION 4.7. Unconditional Right of
Securityholders to Institute
Certain Suits..............................
SECTION 4.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default....................................
SECTION 4.9. Control by Securityholders.........................
SECTION 4.10. Waiver of Past Defaults............................
SECTION 4.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances..............................
SECTION 4.12. Right of Court to Require Filing
of Undertaking to Pay Costs................
ARTICLE FIVE
CONCERNING THE TRUSTEE.
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default.....................................
SECTION 5.2. Certain Rights of the Trustee......................
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof............
SECTION 5.4. Trustee and Agents May Hold
Securities; Collections, etc...............
SECTION 5.5. Moneys Held by Trustee.............................
SECTION 5.6. Compensation and Indemnification
of Trustee and Its Prior Claim.............
SECTION 5.7. Right of Trustee to Rely on
Officers' Certificate, etc.................
SECTION 5.8. Persons Eligible for Appointment
as Trustee.................................
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee.......................
SECTION 5.10. Acceptance of Appointment by
Successor Trustee..........................
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee..........
SECTION 5.12. Preferential Collection of Claims
Against the Issuer.........................
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
SECTION 6.1. Evidence of Action Taken by
Securityholders............................
SECTION 6.2. Proof of Execution of Instruments and
of Holding of Securities; Record
Date.......................................
SECTION 6.3. Holders to Be Treated as Owners....................
SECTION 6.4. Securities Owned by Issuer Deemed Not
Outstanding................................
SECTION 6.5. Right of Revocation of Action Taken................
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders.................
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders.........................
SECTION 7.3. Effect of Supplemental Indenture...................
SECTION 7.4. Documents to Be Given to Trustee...................
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures....................
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1. Issuer may Consolidate, etc., on
Certain Terms..............................
SECTION 8.2. Successor Corporation Substituted..................
SECTION 8.3. Opinion of Counsel to Trustee......................
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 9.1. Satisfaction and Discharge of
Indenture..................................
SECTION 9.2. Application by Trustee of Funds
Deposited for Payment of Securities........
SECTION 9.3. Repayment of Moneys Held by Paying
Agent......................................
SECTION 9.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Three
Years......................................
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability.......................
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders....................................
SECTION 10.3. Successors and Assigns of Issuer
Bound by Indenture.........................
SECTION 10.4. Notices and Demands on Issuer,
Trustee and Securityholders................
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein.............................
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays...............................
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939................................
SECTION 10.8. New York Law to Govern.............................
SECTION 10.9. Counterparts.......................................
SECTION 10.10. Effect of Headings.................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1. Applicability of Article...........................
SECTION 11.2. Notice of Redemption; Partial
Redemptions................................
SECTION 11.3. Payment of Securities Called for
Redemption.................................
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption.................................
SECTION 11.5. Mandatory and Optional Sinking
Funds......................................
ARTICLE TWELVE
DEFEASANCE
SECTION 12.1. Issuer's Option to Effect
Defeasance.................................
SECTION 12.2. Defeasances and Discharge..........................
SECTION 12.3. Covenant Defeasance................................
SECTION 12.4. Conditions to Defeasance...........................
SECTION 12.5. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Reinstatement; Miscellaneous...............
TESTIMONIUM.......................................................
SIGNATURES........................................................
ACKNOWLEDGMENTS...................................................
THIS INDENTURE, dated as of , 1994 between MURPHY OIL
CORPORATION (the "Issuer"), a corporation organized under the laws of the
State of Delaware, and CHEMICAL BANK, a New York corporation (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to
time of its unsecured debentures, notes or other evidences of Indebtedness to
be issued in one or more series (the "Securities") up to such principal amount
or amounts as may from time to time be authorized in accordance with the terms
of this Indenture and to provide, among other things, for the authentication,
delivery and administration thereof, the Issuer has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Securities or of a series thereof as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Article. All other terms used in this Indenture that are defined in the Trust
Indenture Act of 1939 or the definitions of which in the Securities Act of
1933 are referred to in the Trust Indenture Act of 1939, including terms
defined therein by reference to the Securities Act of 1933 (except as herein
otherwise expressly provided or unless the context otherwise clearly
requires), shall have the meanings assigned to such terms in said Trust
Indenture Act and in said Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings assigned to such terms in accordance with generally accepted
accounting principles, and the term "generally accepted accounting principles"
means such accounting principles as are generally accepted at the time of any
computation. 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. The terms defined in this Article have
the meanings assigned to them in this Article and include the plural as well
as the singular.
"Board of Directors" means either the Board of Directors of the
Issuer or any committee of such Board duly authorized to act hereunder.
"Business Day" means, with respect to any Security, a day that
in the city (or in any of the cities, if more than one) in which amounts are
payable, as specified in the form of such Security, is not a day on which
banking institutions are authorized by law or regulation to close.
"Capital Lease Obligations" means any obligation to pay rent or
other amounts under a lease of (or other agreement conveying the right to use)
real or personal property that is required to be classified and accounted for
as a capital lease obligation under generally accepted accounting principles,
and, for the purposes of this Indenture, the amount of such obligation at any
date shall be the capitalized amount thereof at such date, determined in
accordance with such principles.
"Capital Stock" means any and all shares, interests,
participations, rights or other equivalents (however designated) of corporate
stock.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution and delivery of this Indenture
such Commission is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the total of all
assets (less depreciation and amortization reserves and other valuation
reserves and loss reserves) which, under generally accepted accounting
principles, would appear on the asset side of a consolidated balance sheet
of the Company and its Subsidiaries, less the aggregate of all liabilities,
deferred credits, minority shareholders' interests in Subsidiaries,
reserves and other items which, under such principles, would appear on the
liability side of such consolidated balance sheet, except Funded
Indebtedness and Stockholders' Equity; provided, however, that in
determining Consolidated Net Tangible Assets, there shall not be included
as assets, (i) all assets (other than goodwill, which shall be included)
which would be classified as intangible assets under generally accepted
accounting principles, including, without limitation, patents, trademarks,
copyrights and unamortized debt discount and expense, (ii) any treasury
stock carried as an asset, or (iii) any write-ups of capital assets (other
than write-ups resulting from the acquisition of stock or assets of another
corporation or business).
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date as of which
this Indenture is dated, located at 450 West 33rd Street, New York, New York
10001.
"Debt" shall have the meaning set forth in Section 3.9.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Issuer pursuant to Section 2.3 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or
include each Person who is then a Depositary hereunder, and if at any time
there is more than one such Person, "Depositary" as used with respect to the
Securities of that series shall mean the Depositary with respect to the Global
Securities of that series.
"Event of Default" means any event or condition specified as
such in Section 4.1.
"Funded Indebtedness" of any Person means all indebtedness
for borrowed money created, incurred, assumed or guaranteed in any manner
by such Person, and all indebtedness, contingent or otherwise, incurred or
assumed by such Person in connection with the acquisition of any business,
property or asset, which in each case matures more than one year after, or
which by its terms is renewable or extendible or payable out of the
proceeds of similar indebtedness incurred pursuant to the terms of any
revolving credit agreement or any similar agreement at the option of such
Person for a period ending more than one year after the date as of which
Funded Indebtedness is being determined (excluding any amount thereof which
is included in current liabilities); provided, however, that Funded
Indebtedness shall not include: (i) any indebtedness for the payment,
redemption or satisfaction of which money (or evidences of indebtedness, if
permitted under the instrument creating or evidencing such indebtedness) in
the necessary amount shall have been irrevocably deposited in trust with a
trustee or proper depository either on or before the maturity or redemption
date thereof or (ii) any indebtedness of such Person to any of its
subsidiaries or of any subsidiary to such Person or any other subsidiary or
(iii) any indebtedness incurred in connection with the financing of
operating, construction or acquisition projects, provided that the recourse
for such indebtedness is limited to the assets of such projects.
"Global Security" means a Security evidencing all or a part of
a series of Securities, issued to the Depositary for such series in accordance
with Section 2.5, and bearing the legend prescribed in Section 2.5.
"Holder", "holder of Securities", "Securityholder" or other
similar terms mean the Person in whose name a Security is registered in the
security register kept by the Issuer for the purpose in accordance with the
terms hereof.
"Indebtedness" means (a) any liability of any Person (1) for
borrowed money, or any non-contingent reimbursement obligation relating to a
letter of credit, or (2) evidenced by a bond, note, debenture or similar
instrument (including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any kind (other
than a trade payable or a current liability arising in the ordinary course of
business), or (3) for the payment of money relating to a Capital Lease
Obligation; (b) any liability of others described in the preceding clause (a)
that the Person has guaranteed or that is otherwise its legal liability; and
(c) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) and (b)
above.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"Interest" means, when used with respect to non-interest
bearing Securities, interest payable after maturity.
"Issuer" means Murphy Oil Corporation, a corporation organized
under the laws of the State of Delaware, and, subject to Article Eight, its
successors and assigns.
"Issuer Order" means a written statement, request or order of the
Issuer signed in its name by the chairman of the Board of Directors, the
president, any vice president or the treasurer of the Issuer.
"Mortgage" shall have the meaning set forth in Section 3.9.
"Officers' Certificate" means a certificate signed by the
chairman of the Board of Directors or the president or any vice president and
by the treasurer or the secretary or any assistant secretary of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 10.5 hereof, if and to the extent that such sections are applicable.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel who may be an employee of or counsel to the Issuer and who shall
be satisfactory to the Trustee. Each such opinion shall comply with Section
314 of the Trust Indenture Act of 1939 and include the statements provided for
in Section 10.5 hereof, if and to the extent that such sections are applicable.
"Original Issue Discount Security" means any Security that
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 4.1.
"Outstanding", when used with reference to Securities, shall,
subject to the provisions of Section 6.4, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or
redemption of which moneys in the necessary amount shall have been
deposited in trust with the Trustee or with any paying agent
(other than the Issuer) or shall have been set aside, segregated
and held in trust by the Issuer for the holders of such Securities
(if the Issuer shall act as its own paying agent), provided that
if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities
shall have been authenticated and delivered, or which shall have
been paid, pursuant to the terms of Section 2.9 (except with
respect to any such Security as to which proof satisfactory to the
Trustee is presented that such Security is held by a person in
whose hands such Security is a legal, valid and binding obligation
of the Issuer).
In determining whether the holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 4.1.
"Periodic Offering" means an offering of Securities of a
series from time to time, the specific terms of which Securities,
including, without limitation, the rate or rates of interest, if any,
thereon, the stated maturity or maturities thereof and the redemption
provisions, if any, with respect thereto, are to be determined by the
Issuer or its agents upon the issuance of such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"principal" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any".
"Principal Property" means all property and equipment directly
engaged in the exploration, production, refining and transportation activities
of the Issuer and its Subsidiaries, except any such property and equipment
which the Board of Directors declares is not material to the business of the
Issuer and its Subsidiaries taken as a whole.
"Responsible Officer" when used with respect to the Trustee
means the chairman of the board of directors, any vice chairman of the board
of directors, the chairman of the trust committee, the chairman of the
executive committee, any vice chairman of the executive committee, the
president, any vice president, the cashier, the secretary, the treasurer, any
senior trust officer, any trust officer, any assistant trust officer, any
assistant vice president, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the persons who
at the time shall be such officers, respectively, or to whom any corporate
trust matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer that owns
a Principal Property and has Stockholders' Equity that is greater than 2% of
the Consolidated Net Tangible Assets of the Issuer.
"Sale and Lease-Back Transaction" shall have the meaning set forth
in Section 3.10.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
"Senior Funded Indebtedness" means any Funded Indebtedness which is
also Senior Indebtedness.
"Senior Indebtedness" shall mean the principal of and premium, if
any, and interest on (including interest accruing after the filing of a
petition initiating any proceeding pursuant to any bankruptcy law) and other
amounts due on or in connection with any Indebtedness of the Issuer, whether
outstanding on the date of this Indenture or hereafter created, incurred or
assumed, unless, in the case of any particular Indebtedness, the instrument
creating or evidencing the same or pursuant to which the same is outstanding
expressly provides that such Indebtedness shall be subordinated to the
Securities. Notwithstanding the foregoing, Senior Indebtedness shall not
include Indebtedness of the Issuer to a Subsidiary of the Issuer for money
borrowed or advanced from such Subsidiary.
"Stockholders' Equity" means the aggregate of (however
designated) capital, capital stock (including preferred stock), capital
surplus, capital in excess of par value of stock, earned surplus, net income
retained for use in the business and cumulative foreign exchange translation
adjustments, after deducting the cost of shares of the Issuer held in its
treasury.
"Subsidiary" means (i) any corporation of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors thereof is
at the time directly or indirectly owned by the Issuer or by the Issuer and
one or more Subsidiaries or by one or more Subsidiaries, and (ii) any limited
partnership in which the Issuer or a Subsidiary is a general partner or any
partnership or limited liability company in which more than 50% of the voting
interests thereof is at the time directly or indirectly owned by the Issuer or
by the Issuer and one or more Subsidiaries or by one or more Subsidiaries. The
term "subsidiary", when used with respect to any Person other than the Issuer,
shall have a meaning correlative to the foregoing.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 7.1 and 7.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Five, shall also
include any successor trustee. "Trustee" shall also mean or include each
Person who is then a trustee hereunder and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any
series shall mean the trustee with respect to the Securities of such series.
"U.S. Government Obligations" shall have the meaning set forth
in Section 9.1.
"vice president" when used with respect to the Issuer 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 of "vice president".
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series
shall be substantially in such form (not inconsistent with this Indenture) as
shall be established by or pursuant to a resolution of the Board of Directors
(as set forth in such resolution or, to the extent established pursuant to
rather than set forth in such resolution, an Officers' Certificate detailing
such establishment) 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
imprinted or otherwise reproduced thereon such legend or legends, not
inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with
any rules of any securities exchange or to conform to general usage, all as
may be determined by the officers executing such Securities, as evidenced by
their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved on steel engraved borders, all as determined by the officers
executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
This is one of the Securities of the series designated herein
and referred to in the within-mentioned Indenture.
CHEMICAL BANK,
as Trustee
By______________________
Authorized Officer
SECTION 2.3 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 in or pursuant to a resolution of the Board of Directors
and set forth in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that 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
2.8, 2.9, 2.11, 7.5 or 11.3);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) if other than the coin or currency of the United States,
the coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the
principal of or interest, if any, on the Securities of that series
shall be payable and the method of valuing that coin or currency
for purposes of determining the aggregate principal amount of
Securities of that series then Outstanding and the amount to be
paid to satisfy a judgment denominated in the coin or currency of
the United States;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate
shall be determined, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest
shall be payable and the record dates for the determination of
Holders to whom interest is payable;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than
as provided in Section 3.2);
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Issuer, pursuant to any sinking fund or otherwise;
(8) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(9) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any sinking
fund or analogous provisions or at the option of a Holder thereof
and the price or prices at which and the period or periods within
which and the terms and conditions upon which Securities of the
series shall be redeemed, purchased or repaid, in whole or in
part, pursuant to such obligation;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 4.1 or provable in bankruptcy pursuant to
Section 4.2;
(11) if the amount of payments of principal of and interest on
the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the
Securities of the series are denominated, the manner in which such
amounts shall be determined;
(12) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a
person who is not a U.S. person in respect of any tax, assessment
or governmental charge withheld or deducted and, if so, whether
the Issuer will have the option to redeem such Securities rather
than pay such additional amounts;
(13) any trustees, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the
Securities of such series;
(14) any other events of default or covenants with respect to
the Securities of such series;
(15) whether the Securities of the series shall be issued in the
form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Securities; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to such resolution of the Board of Directors or Officers'
Certificate or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time and may be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such a resolution of the Board of Directors, such Officer's
Certificate or in any such indenture supplemental hereto.
SECTION 2.4 Authentication and Delivery of Securities. At any
time and from time to time after the execution and delivery of this Indenture,
the Issuer may deliver Securities of any series executed by the Issuer to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the written order of the Issuer (contained
in the Issuer Order referred to below in this Section), or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be
specified from time to time by an Issuer Order. The maturity date, original
issue date, interest rate and any other terms of the Securities of such series
may, if not previously established by a Board Resolution, Officers'
Certificate or indenture supplemental hereto pursuant to Section 2.3, be
determined by or pursuant to such Issuer Order and procedures. If provided
for in such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall be
entitled to receive (in the case of subparagraphs 1, 2, 3 and 4 below only at
or before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series), and (subject to Section 5.1) shall be
fully protected in relying upon, unless and until such documents have been
superseded or revoked:
(1) a copy of any resolution or resolutions of the Board of
Directors relating to such series, in each case certified by the
Secretary or an Assistant Secretary of the Issuer;
(2) an executed supplemental indenture, if any;
(3) an Officers' Certificate setting forth the form and terms,
or the manner of establishing the terms, of the Securities as
required pursuant to Section 2.1 and 2.3, respectively and prepared in
accordance with Section 10.5;
(4) an Opinion of Counsel, prepared in accordance with Section
10.5, to the effect that
(a) the form or forms of such Securities have been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental indenture as permitted by
Section 2.1 and 2.3 in conformity with the provisions of this
Indenture;
(b) in the case of an underwritten offering, the terms
of the Securities have been duly authorized and established
in conformity with the provisions of this Indenture, and, in
the case of a Periodic Offering, certain terms of the
Securities have been established pursuant to a resolution of
the Board of Directors, an Officers' Certificate or a
supplemental indenture in accordance with this Indenture,
and when such other terms as are to be established pursuant
to procedures set forth in an Issuer Order shall have been
established, all such terms will have been duly authorized
by the Issuer and will have been established in conformity
with the provisions of this Indenture;
(c) such Securities, when authenticated and delivered
by the Trustee and issued by the Issuer in the manner and
subject to any conditions specified in such Opinion of
Counsel, will constitute valid and binding obligations of
the Issuer;
(d) all laws and requirements in respect of the
execution and delivery by the Issuer of the Securities have
been complied with; and
(e) covering such other matters as the Trustee may
reasonably request.
(5) an Issuer Order requesting such authentication and
setting forth delivery instructions if the Securities are not to
be delivered to the Issuer, provided that, with respect to
Securities of a series subject to a Periodic Offering, (a) such
Issuer Order may be delivered by the Issuer to the Trustee prior
to the delivery to the Trustee of such Securities for
authentication and delivery, (b) the Trustee shall authenticate
and deliver Securities of such series for original issue from time
to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant
to an Issuer Order or pursuant to procedures acceptable to the
Trustee as may be specified from time to time by an Issuer Order,
(c) the maturity date or dates, original issue date or dates,
interest rate or rates and any other terms of Securities of such
series shall be determined by an Issuer Order or pursuant to such
procedures and (d) if provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral
or electronic instructions from the Issuer or its duly authorized
agent or agents, which oral instructions shall be promptly
confirmed in writing;
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer
or if the Trustee in good faith by its board of directors or board of
trustees, executive committee, or a trust committee of directors or trustees
or Responsible Officers shall determine that such action would expose the
Trustee to personal liability to existing Holders or would affect the
Trustee's own rights, duties or immunities under the Securities, this
Indenture or otherwise.
SECTION 2.5 Execution of Securities. The Securities shall be
signed on behalf of the Issuer by both (a) the chairman of its Board of
Directors or any vice chairman of its Board of Directors or its president or
any vice president and (b) by its treasurer or any assistant treasurer or its
secretary or any assistant secretary, under its corporate seal which may, but
need not, be attested. Such signatures may be the manual or facsimile
signatures of the present or any future such officers. The seal of the Issuer
may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such
signature shall not affect the validity or enforceability of any Security that
has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of
the Securities shall cease to be such officer before the Security so signed
shall be authenticated and delivered by the Trustee or disposed of by the
Issuer, such Security nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Security had not ceased to be
such officer of the Issuer; and any Security may be signed on behalf of the
Issuer by such persons as, at the actual date of the execution of such
Security, shall be the proper officers of the Issuer, although at the date of
the execution and delivery of this Indenture any such person was not such an
officer.
If the Issuer shall establish pursuant to Section 2.3 that the
Securities of a series are to be issued in the form of one or more Global
Securities, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Global Securities that (i) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series having the same terms
issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instructions and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive registered form, this Security
may not be transferred except as a whole by the Depositary to the nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time
of its designation and at all times while it serves as Depositary, be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and any other applicable statute or regulation.
Notwithstanding any other provision of this Section 2.5, unless
and until it is exchanged in whole or in part for Securities in definitive
form, a Global Security representing all or a portion of the Securities of a
series may not be transferred except as a whole by the Depositary for such
series to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of
such successor Depositary.
If at any time the Depositary for any Securities of a series
represented by one or more Global Securities notifies the Issuer that it is
unwilling or unable to continue as Depositary for such Securities or if at any
time the Depositary for such Securities shall no longer be eligible under this
Section 2.5, the Issuer shall appoint a successor Depositary eligible under
this Section 2.5 with respect to such Securities. If a successor Depositary
eligible under this Section 2.5 for such Securities is not appointed by the
Issuer within 90 days after the Issuer receives such notice or becomes aware
of such ineligibility, the Issuer's election pursuant to Section 2.3 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer will execute, and the Trustee, upon receipt of an
Officers' Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of the Global Security or Securities representing such Securities in exchange
for such Global Security or Securities.
The Issuer may at any time and in its sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by a Global Security or Securities.
In such event the Issuer will execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver, Securities of such series in
definitive registered form without coupons, in any authorized denominations,
in an aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Securities, in exchange for such
Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect
to Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary a new
Security or Securities of the same series, of any authorized
denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's
beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a
denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the
aggregate principal amount of Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in
definitive registered form without coupons, in authorized denominations, such
Global Security shall be cancelled by the Trustee or an agent of the Issuer or
the Trustee. Securities in definitive registered form without coupons issued
in exchange for a Global Security pursuant to this Section 2.5 shall be
registered in such names and in such authorized denominations as the
Depositary for such Global Security, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the Trustee or an agent
of the Issuer or the Trustee. The Trustee or such agent shall deliver such
Securities to or as directed by the Persons in whose names such Securities are
so registered.
SECTION 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form hereinbefore recited, executed by the Trustee by the manual
signature of one of its authorized officers, shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate
by the Trustee upon any Security executed by the Issuer shall be conclusive
evidence that the Security so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable as registered securities without
coupons and in denominations as shall be specified as contemplated by Section
2.3. In the absence of any such specification with respect to the Securities
of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any multiple thereof. The Securities shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plan as the officers of the Issuer executing the same may determine
with the approval of the Trustee as evidenced by the execution and
authentication thereof.
Each Security shall be dated the date of its authentication,
shall bear interest, if any, from the date and shall be payable on the dates,
in each case, which shall be specified as contemplated by Section 2.3.
The person in whose name any Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Security
subsequent to the record date and prior to such interest payment date, except
if and to the extent the Issuer shall default in the payment of the interest
due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Securities for such series are registered at the close of business on a
subsequent record date (which shall be not less than five Business Days prior
to the date of payment of such defaulted interest) established by notice given
by mail by or on behalf of the Issuer to the holders of Securities not less
than 15 days preceding such subsequent record date. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) shall mean the date specified as such in the terms of the
Securities of any particular series, or, if no such date is so specified, if
such interest payment date is the first day of a calendar month, the fifteenth
day of the next preceding calendar month or, if such interest payment date is
the fifteenth day of a calendar month, the first day of such calendar month,
whether or not such record date is a Business Day.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer
will keep or cause to be kept at each office or agency to be maintained for
the purpose as provided in Section 3.2 a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will register,
and will register the transfer of, Securities as in this Article provided.
Such register shall be in written form in the English language or in any other
form capable of being converted into such form within a reasonable time. At
all reasonable times such register or registers shall be open for inspection
by the Trustee.
Upon due presentation for registration of transfer of any
Security of any series at any such office or agency to be maintained for the
purpose as provided in Section 3.2, the Issuer shall execute and the Trustee
shall authenticate and deliver in the name of the transferee or transferees a
new Security or Securities of the same series in authorized denominations for
a like aggregate principal amount.
Any Security or Securities of any series may be exchanged for a
Security or Securities of the same series in other authorized denominations,
in an equal aggregate principal amount. Securities of any series to be
exchanged shall be surrendered at any office or agency to be maintained by the
Issuer for the purpose as provided in Section 3.2, and the Issuer shall
execute and the Trustee shall authenticate and deliver in exchange therefor the
Security or Securities of the same series which the Securityholder making the
exchange shall be entitled to receive, bearing numbers not contemporaneously
outstanding.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any
exchange or registration of transfer of Securities. No service charge shall
be made for any such transaction.
The Issuer shall not be required to exchange or register a
transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such
series to be redeemed, or (b) any Securities selected, called or being called
for redemption except, in the case of any Security where notice has been given
that such Security is to be redeemed in part, the portion thereof not so to be
redeemed.
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any temporary or definitive Security shall become
mutilated, defaced or be destroyed, lost or stolen, the Issuer in its
discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and
substitution for the Security so destroyed, lost or stolen. In every case, the
applicant for a substitute Security shall furnish to the Issuer and to the
Trustee and any agent of the Issuer or the Trustee such security or indemnity
as may be required by them to indemnify and defend and to save each of them
harmless and, in every case of destruction, loss or theft, shall furnish
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Upon the issuance of any substitute Security, the Issuer 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. In case
any Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the
case of a mutilated or defaced Security), if the applicant for such payment
shall furnish to the Issuer and to the Trustee and any agent of the Issuer or
the Trustee such security or indemnity as any of them may require to save each
of them harmless, and, in every case of destruction, loss or theft, the
applicant shall also furnish to the Issuer and the Trustee and any agent of
the Issuer or the Trustee evidence to their satisfaction of the destruction,
loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual
obligation of the Issuer, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and that substitute
Security shall be entitled to all the benefits of (but shall be subject to all
the limitations of rights set forth in) this Indenture equally and
proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced or destroyed, lost or stolen Securities and shall preclude
any and all other rights or remedies notwithstanding any law or statute
existing or hereafter enacted to the contrary with respect to the replacement
or payment of negotiable instruments or other securities without their
surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof.
All Securities surrendered for payment, redemption, registration of transfer
or exchange, or for credit against any payment in respect of a sinking or
analogous fund, if surrendered to the Issuer or any agent of the Issuer or of
the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no Securities shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Indenture. The Trustee shall dispose of cancelled
Securities held by it in accordance with its customary procedures and deliver
a certificate of disposition to the Issuer. If the Issuer shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and
until the same are delivered to the Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series
and thereupon temporary Securities of such series may be surrendered in
exchange therefor without charge at each office or agency to be maintained by
the Issuer for that purpose pursuant to Section 3.2, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of definitive Securities of the same
series of authorized denominations. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this
Indenture as definitive Securities of such series.
SECTION 2.12 Computation of Interest. Except as otherwise
specified as contemplated by Section 2.3 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 THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.1 Payment of Principal and Interest. The Issuer
covenants and agrees for the benefit of each series of Securities that it will
duly and punctually pay or cause to be paid the principal of, and interest on,
each of the Securities of such series at the place or places, at the
respective times and in the manner provided in such Securities. Each
instalment of interest on the Securities of any series may be paid by mailing
checks for such interest payable to or upon the written order of the holders
of Securities entitled thereto as they shall appear on the registry books of
the Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Securities remain Outstanding, the Issuer will maintain in The City of New
York, the following for each series: an office or agency (a) where the
Securities may be presented for payment, (b) where the Securities may be
presented for registration of transfer and for exchange as in this Indenture
provided and (c) where notices and demands to or upon the Issuer in respect of
the Securities or of this Indenture may be served. The Issuer will give to the
Trustee written notice of the location of any such office or agency and of any
change of location thereof. Unless otherwise specified in accordance with
Section 2.3, the Issuer hereby initially designates the Corporate Trust Office
of Chemical Bank, as the office to be maintained by it for each such purpose.
In case the Issuer shall fail to so designate or maintain any such office or
agency or shall fail to give such notice of the location or of any change in
the location thereof, presentations and demands may be made and notices may be
served at the Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 5.9, a
Trustee, so that there shall at all times be a Trustee with respect to each
series of Securities hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint
a paying agent other than the Trustee with respect to the Securities of any
series, it will cause such paying agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent
for the payment of the principal of or interest on the Securities
of such series (whether such sums have been paid to it by the
Issuer or by any other obligor on the Securities of such series)
in trust for the benefit of the holders of the Securities of such
series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to
make any payment of the principal of or interest on the Securities of
such series when the same shall be due and payable, and
(c) that it will pay any such sums so held by it in trust to
the Trustee upon the Trustee's written request at any time during the
continuance of the failure referred to in clause (b) above.
The Issuer will, on or prior to each due date of the
principal of or interest on the Securities of such series, deposit with the
paying agent a sum sufficient to pay such principal or interest so becoming
due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any series, it will, on or before each due date of the
principal of or interest on the Securities of such series, set aside,
segregate and hold in trust for the benefit of the holders of the
Securities of such series a sum sufficient to pay such principal or
interest so becoming due. The Issuer will promptly notify the Trustee of
any failure to take such action.
Anything in this Section to the contrary notwithstanding, the
Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder,
or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for any such series by the Issuer or any paying agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 9.3 and 9.4.
SECTION 3.5 Certificate of the Issuer.
The Issuer will deliver to the Trustee, on or before a date not more than
120 days after the end of each fiscal year of the Issuer ending after the
date of this Indenture, a written statement signed by the following
officers (one of whom shall be the principal executive, financial or
accounting officer of the Issuer): the Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Comptroller,
an Assistant Comptroller, the Secretary or the Assistant Secretary of the
issuer, stating whether or not, after a review under each signer's
supervision of the activities of the Issuer during such year and of the
Issuer's performance under this Indenture, to the best knowledge, based on
such review, of the signers thereof, the issuer has fulfilled all of its
obligations, conditions and covenants under this Indenture throughout such
year, and, if there has been a default in the fulfillment of any such
obligation, condition or covenant specifying each default and the nature
and status thereof.
SECTION 3.6 Securityholders Lists. If and so long as the
Trustee shall not be the Security registrar for the Securities of any series,
the Issuer will furnish or cause to be furnished to the Trustee a list in such
form as the Trustee may reasonably require of the names and addresses of the
holders of the Securities of such series pursuant to Section 312 of the Trust
Indenture Act of 1939 (a) semi-annually not more than 15 days after each record
date for the payment of interest on such Securities, as hereinabove specified,
as of such record date and on dates to be determined pursuant to Section 2.3
for non-interest bearing securities in each year, and (b) at such other times
as the Trustee may request in writing, within thirty days after receipt by the
Issuer of any such request as of a date not more than 15 days prior to the
time such information is furnished.
SECTION 3.7 Reports by the Issuer. The Issuer covenants to
file with the Trustee, within 15 days after the Issuer is required to file the
same with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 or pursuant to Section 314 of the Trust Indenture Act of 1939.
SECTION 3.8 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted on or before July 15 in each year following the date hereof, so
long as any Securities are Outstanding hereunder, and shall be dated as of a
date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto. At the time it delivers such report, the Trustee shall deliver a
copy thereof to the Issuer.
SECTION 3.9 Limitation on Liens. The Issuer will not, nor
will it permit any Restricted Subsidiary to, incur, assume, guarantee or
suffer to exist any Indebtedness for money borrowed (herein referred to as
"Debt") if such Debt is secured, directly or indirectly, by any mortgage,
pledge, security interest or lien of any kind (hereinafter referred to as a
"Mortgage") upon any Principal Property or upon any indebtedness or share
of capital stock of any Restricted Subsidiary which owns any Principal
Property, now owned or hereafter acquired, without making effective
provision, and the Issuer in such case will make or cause to be made
effective provision, whereby the Securities of each series will be secured
by such Mortgage equally and ratably with (or prior to) any other Debt
thereby secured so long as such Debt shall be so secured, except that the
foregoing provisions shall not apply to: (i) Mortgages existing at the
time of acquisition of the property, shares of stock or indebtedness
affected thereby or incurred to secure payment of all or part of the
purchase price of such property, shares of stock or indebtedness or to
secure Debt incurred prior to, at the time of or within 120 days after the
acquisition or completion of construction of such property, shares of stock
or indebtedness for the purpose of financing all or part of the purchase
price or cost of construction thereof, as the case may be (provided that
such Mortgages are limited to such property and improvements thereon or the
shares of stock or indebtedness so acquired), (ii) Mortgages affecting
property, shares of stock or indebtedness of a Person existing at the time
it becomes a Restricted Subsidiary (provided that any such Mortgage shall
attach only to the properties and improvements thereon or the shares of
stock or indebtedness so acquired), (iii) Mortgages which secure only Debt
of a Restricted Subsidiary owing to the Issuer or a Subsidiary, (iv)
Mortgages or easements on property of the Issuer or any Restricted
Subsidiary related to the financing of such property on a tax-exempt basis
pursuant to Section 103(b)(4) or (b)(6) of the Internal Revenue Code of
1986, as amended (or any successor section thereto), that do not in the
aggregate materially detract from the value of property or assets or
materially impair the use thereof in the operation of the business of the
Issuer or any Restricted Subsidiary, (v) Mortgages in favor of the United
States of America or any instrumentality thereof, or in favor of any
foreign government or any department, agency, instrumentality or political
subdivision thereof, to secure partial, progress, advance or other payments
pursuant to any contract or statute, (vi) Mortgages existing at the date
of this Indenture, (vii) liens on property or assets of the Issuer or any
Restricted Subsidiary consisting of marine Mortgages provided for in Title
XI of the Merchant Marine Act of 1936 or foreign equivalents, (viii)
Mortgages on property of the Issuer or any Restricted Subsidiary securing
Debt incurred in connection with the financing of operating, constructing
or acquiring projects, provided that the recourse for such Debt is limited
to the assets of such projects, and (ix) any extension, renewal or
replacement (or successive extensions, renewals or replacements), in whole
or in part, of any Mortgage referred to in the foregoing clauses (i) to
(viii) inclusive or of any Debt secured thereby, provided that the
principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and; provided, further, that such Mortgage shall be limited to
all or part of substantially the same property which secured the Mortgage
extended, renewed or replaced (plus improvements on such property).
Notwithstanding the foregoing, the Issuer or any Restricted
Subsidiary may create or permit to exist Mortgages on any Principal
Property, or upon any indebtedness or share of capital stock of any Restricted
Subsidiary so long as the aggregate amount of Debt secured by all such
Mortgages (excluding therefrom the Debt secured by Mortgages set forth in
clauses (i) through (ix), inclusive, above) does not exceed 5% of the
Consolidated Net Tangible Assets of the Issuer.
SECTION 3.10. Limitation on Sale and Lease-Back
Transactions. The Issuer will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Issuer or a Restricted Subsidiary as lessee of any Principal
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
Issuer or such Restricted Subsidiary to such person (herein referred to as
a "Sale and Lease-Back Transaction"), unless (i) the Issuer or such
Restricted Subsidiary would be entitled to incur Debt secured by a Mortgage
on the property to be leased without violation of Section 3.9 and without
equally and ratably securing the Securities of each series or (ii) the
Issuer shall, and in any such case the Issuer covenants that it will, apply
an amount equal to the greater of (a) the proceeds of such sale or transfer
or (b) the fair value (as determined by the Board of Directors) of the
property so leased to the defeasance or retirement (other than any
mandatory retirement), within 120 days of the effective date of any such
arrangement, of Senior Funded Indebtedness; provided, however, that the
amount to be so applied to the defeasance or retirement of such Senior
Funded Indebtedness will be reduced by an amount (not previously used to
reduce the amount of such defeasance or retirement) equal to the lesser of
(x) the amount expended by the Issuer since the date of this Indenture and
within twelve months prior to the effective date of any such arrangement or
within 120 days thereafter for the acquisition by it of unencumbered
Principal Properties or (y) the fair value (as determined by the Board of
Directors) of unencumbered Principal Properties so acquired by the Issuer
during such twelve-month period and 120-day period.
ARTICLE FOUR
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 4.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any installment of interest upon
any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period
of 30 days; or
(b) default in the payment of all or any part of the principal
on any of the Securities of such series as and when the same shall
become due and payable either at maturity, upon redemption, by
declaration or otherwise; or
(c) default in the payment of any sinking fund installment as
and when the same shall become due and payable by the terms of the
Securities of such series; or
(d) default in the performance, or breach, of any covenant
or warranty of the Issuer in respect of the Securities of such
series (other than a covenant or warranty in respect of the
Securities of such series a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to
the Issuer by the Trustee or to the Issuer and the Trustee by the
Holders of at least 25% in aggregate principal amount of the
Outstanding Securities of all series affected thereby, 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
(e) a court having jurisdiction in the premises shall enter
a decree or order for relief in respect of the Issuer in an
involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian, trustee or sequestrator
(or similar official) of the Issuer or for any substantial part of
its property or ordering the winding up or liquidation of the
Issuer's affairs, and such decree or order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(f) the Issuer shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to
the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official)
of the Issuer or for any substantial part of its property, or make
any general assignment for the benefit of creditors;
(g) an event of default, as defined in any indenture or
instrument evidencing or securing or under which the Issuer has at
the date of this Indenture or shall hereafter have outstanding,
on any Debt in an amount exceeding $5,000,000, which default shall
involve (i) the failure by the Issuer to make any payment when
such Debt is due and payable and demand has been made, including
any applicable grace period, in respect of Debt and such failure
shall have continued for a period of thirty days after written
notice thereof to the Issuer and the Trustee by the holders of not
less than 25% in aggregate principal amount of the Securities of
such series or (ii) a default in the payment of interest, premium,
principal or a sinking fund or redemption payment, which shall
have resulted in such Debt having been accelerated so that the
same shall be or become due and payable prior to the date on which
the same would otherwise become due and payable, and such
acceleration shall not be stayed, rescinded or annulled within ten
days after written notice thereof to the Issuer and the Trustee by
the holders of at least 25% in aggregate principal amount of the
Securities of each series so affected then Outstanding; provided,
however, that if such event of default under such indenture or
instrument shall be remedied or cured by the Issuer or be waived
by the holders of such Debt before any judgment or decree for the
payment of the moneys due shall have been obtained or entered,
then the Event of Default hereunder by reason thereof shall be
deemed likewise to have been thereupon remedied, cured or waived
without further action upon the part of either the Trustee or any
of the holders of the Securities of such series; or
(h) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the resolution of the Board
of Directors under which such series of Securities is issued or in
the form of Security for such series.
If an Event of Default with respect to Securities of such series occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of such series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such
series) of all Securities of such series and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration the same
shall become immediately due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities
are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof) of the Securities of any series
shall have been so declared due and payable, and before any judgment or
decree for the payment of the moneys due shall have been obtained or
entered as hereinafter provided, the Issuer shall pay or shall deposit with
the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of such series and the principal of any and all
Securities of such series which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that
payment of such interest is enforceable under applicable law, on overdue
installments of interest, at the same rate as the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a
result of negligence or bad faith, and if any and all Events of Default
under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein--then and in every
such case the holders of a majority in aggregate principal amount of all
the Securities of such series, each series voting as a separate class (or
of all the Securities, as the case may be, voting as a single class), then
Outstanding, by written notice to the Issuer and to the Trustee, may waive
all defaults with respect to such series (or with respect to all the
Securities, as the case may be) and rescind and annul such declaration and
its consequences, but no such waiver or rescission and annulment shall
extend to or shall affect any subsequent default or shall impair any right
consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof,
then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount
Securities shall be deemed, for all purposes hereunder, to be such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be
due and payable as a result of such acceleration, together with interest, if
any, thereon and all other amounts owing thereunder, shall constitute payment
in full of such Original Issue Discount Securities.
The Trustee shall not be charged with notice of any event of
default referred to in Section 4.1(g) unless (i) an officer of the Trustee
assigned to its Corporate Trustee Administration Department shall have
actual knowledge thereof or (ii) the Trustee shall have received written
notice thereof from the issuer, the holder of any Debt referred to in
Section 4.1(g) or the holders of not less than 25% in aggregate principal
amount of the Securities of any series.
SECTION 4.2 Collection of Indebtedness by Trustee; Trustee May
Prove Debt. The Issuer covenants that (a) in case default shall be made in
the payment of any instalment of interest on any of the Securities of any
series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days or (b) in case default shall be
made in the payment of all or any part of the principal of any of the
Securities of any series when the same shall have become due and payable,
whether upon maturity of the Securities of such series or upon any redemption
or by declaration or otherwise--then upon demand of the Trustee, the Issuer
will pay to the Trustee for the benefit of the Holders of the Securities of
such series the whole amount that then shall have become due and payable on
all Securities of such series for principal or interest, as the case may be
(with interest to the date of such payment upon the overdue principal and, to
the extent that payment of such interest is enforceable under applicable law,
on overdue installments of interest at the same rate as the rate of interest
or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series); and in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and any
expenses and liabilities incurred, and all advances made, by the Trustee and
each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the
registered holders, whether or not the principal of and interest on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts
upon such demand, the Trustee, in its own name and as trustee of an express
trust, shall be entitled and empowered to institute any action or proceedings
at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may
enforce any such judgment or final decree against the Issuer or other obligor
upon such Securities and collect in the manner provided by law out of the
property of the Issuer or other obligor upon such Securities, wherever
situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor, or in case of any other comparable judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of any Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount
of principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in any judicial proceedings relative to
the Issuer or other obligor upon the Securities of any series, or
to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Securities of any series in
any election of a trustee or a standby trustee in arrangement,
reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable
proceedings, and
(c) to collect and receive any moneys or other property
payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby
authorized by each of the Securityholders to make payments to the
Trustee, and, in the event that the Trustee shall consent to the
making of payments directly to the Securityholders, to pay to the
Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.6.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this
Indenture, or under any of the Securities, may be enforced by the Trustee
without the possession of any of the Securities or the production thereof on
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, liabilities incurred, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the holders of the Securities
in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any
proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all
the holders of the Securities in respect to which such action was taken, and
it shall not be necessary to make any holders of such Securities parties to
any such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been
collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected,
including reasonable compensation to the Trustee and each
predecessor Trustee and their respective agents and attorneys and
of all expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith, and all other amounts due to the Trustee
or any predecessor Trustee pursuant to Section 5.6;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not
have become and be then due and payable, to the payment of
interest on the Securities of such series in default in the order
of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by
the Trustee) upon the overdue installments of interest at the same
rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities,
such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the
whole amount then owing and unpaid upon all the Securities of such
series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such
principal and interest or Yield to Maturity, without preference or
priority of principal over interest or Yield to Maturity, or of
interest or Yield to Maturity over principal, or of any instalment
of interest over any other instalment of interest, or of any
Security of such series over any other Security of such series,
ratably to the aggregate of such principal and accrued and unpaid
interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer
or any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may
in its discretion proceed to protect and enforce the rights vested in it by
this Indenture by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any of such rights, either at law
or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid
of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series shall have any right by virtue or by
availing of any provision of this Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise upon or under or
with respect to this Indenture, or for the appointment of a trustee, receiver,
liquidator, custodian or other similar official or for any other remedy
hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless also the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding shall have
made written request upon the Trustee to institute such action or proceedings
in its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby and the Trustee for 60 days
after its receipt of such notice, request and offer of indemnity shall have
failed to institute any such action or proceeding and no direction
inconsistent with such written request shall have been given to the Trustee
pursuant to Section 4.9; it being understood and intended, and being expressly
covenanted by the taker and Holder of every Security with every other taker and
Holder and the Trustee, that no one or more Holders of Securities of any
series shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any other such Holder of Securities, or to obtain or seek to obtain priority
over or preference to any other such Holder or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
SECTION 4.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any
Security to receive payment of the principal of and interest on such Security
on or after the respective due dates expressed or provided for in such
Security, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 4.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Sections 2.9 and 4.6, no right
or remedy herein conferred upon or reserved to the Trustee or to the
Securityholders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
No delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or power or shall be
construed to be a waiver of any such Event of Default or an acquiescence
therein; and, subject to Section 4.6, every power and remedy given by this
Indenture or by law to the Trustee or to the Securityholders may be exercised
from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
SECTION 4.9 Control by Securityholders. The Holders of a
majority in aggregate principal amount of the Securities of each series
affected (with each series voting as a separate class) at the time Outstanding
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
by this Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Indenture and provided further
that (subject to the provisions of Section 5.1) the Trustee shall have the
right to decline to follow any such direction if the Trustee, being advised by
counsel, shall determine that the action or proceeding so directed may not
lawfully be taken or if the Trustee in good faith by its board of directors,
the executive committee or a trust committee of directors or Responsible
Officers of the Trustee shall determine that the action or proceedings so
directed would involve the Trustee in personal liability or if the Trustee in
good faith shall so determine that the actions or forebearances specified in
or pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving
of said direction, it being understood that (subject to Section 5.1) the
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee
in its discretion to take any action deemed proper by the Trustee and which is
not inconsistent with such direction or directions by Securityholders.
SECTION 4.10 Waiver of Past Defaults. Prior to a
declaration of the acceleration of the maturity of the Securities of any
series as provided in Section 4.1, the Holders of a majority in aggregate
principal amount of the Securities of such series at the time Outstanding
(each such series voting as a separate class) may on behalf of the Holders
of all the Securities of such series waive any past default or Event of
Default described in clause (d) or (g) of Section 4.1 which relates to less
than all series of Securities then Outstanding, except a default in respect
of a covenant or provision hereof which cannot be modified or amended
without the consent of each Holder affected as provided in Section 7.2.
Prior to a declaration of acceleration of the maturity of the Securities of
any series as provided in Section 4.1, the Holders of Securities of a
majority in principal amount of all the Securities then Outstanding (voting
as one class) may on behalf of all Holders waive any past default or Event
of Default referred to in said clause (d) or (g) which relates to all
series of Securities then Outstanding, or described in clause (e) or (f) of
Section 4.1, except a default in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of
each Security affected as provided in Section 7.2. In the case of any such
waiver, the Issuer, the Trustee and the Holders of the Securities of each
series affected shall be restored to their former positions and rights
hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 4.11 Trustee to Give Notice of Default, But May
Withhold in Certain Circumstances. The Trustee shall give to the
Securityholders of any series, as the names and addresses of such Holders
appear on the registry books, notice by mail of all defaults known to the
Trustee which have occurred with respect to such series, such notice to be
transmitted within 90 days after the occurrence thereof, unless such defaults
shall have been cured before the giving of such notice (the term "default" or
"defaults" for the purposes of this Section being hereby defined to mean any
event or condition which is, or with notice or lapse of time or both would
become, an Event of Default); provided that, except in the case of default in
the payment of the principal of or interest on any of the Securities of such
series, or in the payment of any sinking or purchase fund instalment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors or trustees and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Securityholders of such
series.
SECTION 4.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section
shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder or group of Securityholders of any series
holding in the aggregate more than 10% in aggregate principal amount of the
Securities of such series, or, in the case of any suit relating to or
arising under clauses (d) or (g) of Section 4.1 (if the suit relates to
Securities of more than one but less than all series), 10% in aggregate
principal amount of Securities Outstanding affected thereby, or in the case
of any suit relating to or arising under clauses (d) or (g) (if the suit
relates to all the Securities then Outstanding), (e) or (f) of Section 4.1,
10% in aggregate principal amount of all Securities Outstanding, or to any
suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date
expressed in such Security.
ARTICLE FIVE
CONCERNING THE TRUSTEE
SECTION 5.1 Duties and Responsibilities of the Trustee; During
Default; Prior to Default. With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture. In case an Event of Default
with respect to the Securities of a series has occurred (which has not been
cured or waived) the Trustee shall with respect to such series of Securities
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve
the Trustee from liability for its own negligent action, its own negligent
failure to act or its own wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with
respect to the Securities of any series and after the curing or
waiving of all such Events of Default with respect to such series
which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of such series shall be determined
solely by the express provisions of this Indenture, and the
Trustee shall not be liable except for the performance of
such duties and obligations as are specifically set forth in
this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions
expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the
requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Responsible Officers
of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders pursuant to Section
4.9 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture.
None of the provisions contained in this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers, if there shall be reasonable ground
for believing that the repayment of such funds or adequate indemnity against
such liability is not reasonably assured to it.
The provisions of this Section 5.1 are in furtherance of and
subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 5.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate
or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel and any advice or
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted to be
taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant
to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be
incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder
and after the curing or waiving of all Events of Default, the
Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or
other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal
amount of the Securities of all series affected then Outstanding;
provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by
the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or
liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by
the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the
Trustee shall not be responsible for any misconduct or negligence
on the part of any such agent or attorney appointed with due care
by it hereunder.
SECTION 5.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application
by the Issuer of any of the Securities or of the proceeds thereof.
SECTION 5.4 Trustee and Agents May Hold Securities;
Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities with the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and receive, collect, hold
and retain collections from the Issuer with the same rights it would have if
it were not the Trustee or such agent.
SECTION 5.5 Moneys Held by Trustee. Subject to the provisions
of Section 9.4 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent required by mandatory provisions of law. Neither the Trustee nor any
agent of the Issuer or the Trustee shall be under any liability for interest
on any moneys received by it hereunder.
SECTION 5.6 Compensation and Indemnification of Trustee and
Its Prior Claim. The Issuer covenants and agrees to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable
compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) and the Issuer
covenants and agrees to pay or reimburse the Trustee and each predecessor
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and
the expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ) except to the extent any such expense,
disbursement or advance may arise from its negligence or bad faith. The
Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and the performance of its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the extent
such loss, liability or expense is due to the negligence or bad faith of
the Trustee or such predecessor Trustee. The obligations of the Issuer
under this Section to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each
predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. Such additional indebtedness
shall be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust
for the benefit of the holders of particular Securities, and the Securities
are hereby subordinated to such senior claim.
SECTION 5.7 Right of Trustee to Rely on Officers' Certificate,
etc. Subject to Sections 5.1 and 5.2, whenever in the administration of the
trusts of this Indenture the Trustee shall deem it necessary or desirable that
a matter be proved or established prior to taking or suffering or omitting any
action hereunder, such matter (unless other evidence in respect thereof be
herein specifically prescribed) may, in the absence of negligence or bad faith
on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
certificate, in the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action taken, suffered
or omitted by it under the provisions of this Indenture upon the faith
thereof.
SECTION 5.8 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation having a combined capital and surplus of at least $50,000,000, and
which is eligible in accordance with the provisions of Section 310(a) of the
Trust Indenture Act of 1939. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of a
Federal, State or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
SECTION 5.9 Resignation and Removal; Appointment of Successor
Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed,
may at any time resign with respect to one or more or all series of Securities
by giving written notice of resignation to the Issuer and by mailing notice
thereof by first class mail to Holders of the applicable series of Securities
at their last addresses as they shall appear on the Security register. Upon
receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee or trustees. If no successor trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
trustee may petition any court of competent jurisdiction for the appointment
of a successor trustee, or any Securityholder who has been a bona fide Holder
of a Security or Securities of the applicable series for at least six months
may, subject to the provisions of Section 4.12, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 310(b) of the Trust Indenture Act of 1939 with respect to any
series of Securities after written request therefor by the Issuer or
by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with
the provisions of Section 310(a) of the Trust Indenture Act of 1939
and shall fail to resign after written request therefor by the Issuer
or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a
bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to
the applicable series of Securities and appoint a successor trustee for
such series by written instrument, in duplicate, executed by order of the
Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee,
or, subject to Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities
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 removal of the Trustee and the appointment of a successor trustee with
respect to such series. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and appoint a
successor trustee.
(c) The Holders of a majority in aggregate principal amount
of the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor trustee with respect to the Securities of such series by
delivering to the Trustee so removed, to the successor trustee so appointed
and to the Issuer the evidence provided for in Section 6.1 of the action in
that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to
any series and any appointment of a successor trustee with respect to such
series pursuant to any of the provisions of this Section 5.9 shall become
effective upon acceptance of appointment by the successor trustee as provided
in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor Trustee.
Any successor trustee appointed as provided in Section 5.9 shall execute and
deliver to the Issuer and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and
obligations with respect to such series of its predecessor hereunder, with
like effect as if originally named as trustee for such series hereunder; but,
nevertheless, on the written request of the Issuer or of the successor
trustee, upon payment of its charges then unpaid, the trustee ceasing to act
shall, subject to Section 9.4, pay over to the successor trustee all moneys at
the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall
execute any and all instruments in writing for more fully and certainly vesting
in and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a prior claim upon all
property or funds held or collected by such trustee to secure any amounts then
due it pursuant to the provisions of Section 5.6.
If a successor trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such
trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.10, the Issuer shall mail notice thereof by
first-class mail to the Holders of Securities of any series for which such
successor trustee is acting as trustee at their last addresses as they shall
appear in the Security register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by
Section 5.9. If the Issuer fails to mail such notice within ten days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Issuer.
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Trustee. 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 that such corporation shall be eligible under the
provisions of Section 5.8, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed
to the trusts created by this Indenture any of the Securities of any series
shall have been authenticated but not delivered, any such successor to the
Trustee may adopt the certificate of authentication of any predecessor Trustee
and deliver such Securities so authenticated; and, in case at that time any of
the Securities of any series shall not have been authenticated, any successor
to the Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate
of the Trustee shall have; provided, that the right to adopt the certificate
of authentication of any predecessor Trustee or to authenticate Securities of
any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
SECTION 5.12. Preferential Collection of Claims Against the
Issuer. Reference is made to Section 311 of the Trust Indenture Act of 1939,
as amended.
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS
SECTION 6.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Indenture and (subject to Sections 5.1 and 5.2) conclusive
in favor of the Trustee and the Issuer, if made in the manner provided in this
Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Securities; Record Date. Subject to Sections 5.1 and 5.2, the execution of
any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a
certificate of the registrar thereof. The Issuer may set a record date for
purposes of determining the identity of holders of Securities of any series
entitled to vote or consent to any action referred to in Section 6.1 which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, only holders of Securities of such series of record
on such record date shall be entitled to so vote or give such consent or
revoke such vote or consent.
SECTION 6.3 Holders to be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or
not such Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and, subject to the provisions of this
Indenture, interest on such Security and for all other purposes; and neither
the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
person, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Security.
SECTION 6.4 Securities Owned by Issuer Deemed Not Outstanding.
In determining whether the Holders of the requisite aggregate principal amount
of Outstanding Securities of any or all series have concurred in any
direction, consent or waiver under this Indenture, Securities which are owned
by the Issuer or any other obligor on the Securities or by any person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Securities which the Trustee knows are so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Issuer or any other obligor upon the Securities or any person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer or any other obligor on the
Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Securities, if any, known by the Issuer to be owned or held by
or for the account of any of the above-described persons; and, subject to
Sections 5.1 and 5.2, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of
any such determination.
SECTION 6.5 Right of Revocation of Action Taken. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 6.1, of the taking of any action by the Holders of the percentage
in aggregate principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such
action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the
Holders of which have consented to such action may, by filing written
notice at the Corporate Trust Office and upon proof of holding as provided
in this Article, revoke such action so far as concerns such Security.
Except as aforesaid any such action taken by the Holder of any Security
shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon
any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the
case may be, specified in this Indenture in connection with such action
shall be conclusively binding upon the Issuer, the Trustee and the Holders
of all the Securities affected by such action.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES
SECTION 7.1 Supplemental Indentures Without Consent of
Securityholders. The Issuer, when authorized by a resolution of its Board of
Directors (which resolution may provide general terms or parameters for such
action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order), and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Securities of one or more series any
property or assets;
(b) to evidence the succession of another corporation to the
Issuer, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
the Issuer pursuant to Article Eight;
(c) to add to the covenants of the Issuer such further
covenants, restrictions, conditions or provisions as its Board of
Directors and the Trustee shall consider to be for the protection
of the Holders of Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided,
that in respect of any such additional covenant, restriction,
condition or provision 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 an Event of
Default or may limit the remedies available to the Trustee upon
such an Event of Default or may limit the right of the Holders of
a majority in aggregate principal amount of the Securities of such
series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture, which
may be defective or inconsistent with any other provision
contained herein or in any supplemental indenture; or to make such
other provisions in regard to matters or questions arising under
this Indenture or under any supplemental indenture as the Board of
Directors may deem necessary or desirable; provided that no such
action shall adversely affect the interests of the Holders of the
Securities in any material respect;
(e) to establish the form or terms of Securities of any series
as permitted by Sections 2.1 and 2.3; and
(f) 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
5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
Any supplemental indenture authorized by the provisions of this
Section may be executed without the consent of the Holders of any of the
Securities at the time Outstanding, notwithstanding any of the provisions of
Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of
Securityholders. With the consent (evidenced as provided in Article Six)
of the Holders of not less than a majority in aggregate principal amount of
the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized
by a resolution of its Board of Directors, and the Trustee may, from time
to time and at any time, 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 any
supplemental indenture or of modifying in any manner the rights of the
Holders of the Securities of each such series; provided, that no such
supplemental indenture shall (a) extend the final maturity of any Security,
or reduce the principal amount thereof, or reduce the rate or extend the
time of payment of interest thereon, or reduce any amount payable on
redemption thereof or reduce the amount of the principal of an Original
Issue Discount Security that would be due and payable upon an acceleration
of the maturity thereof pursuant to Section 4.1 or the amount thereof
provable in bankruptcy pursuant to Section 4.2, or impair or affect the
right of any Securityholder to institute suit for the payment thereof or,
if the Securities provide therefor, any right of repayment at the option of
the Securityholder without the consent of the Holder of each Security so
affected, or (b) reduce the aforesaid percentage of Securities of any
series, the consent of the Holders of which is required for any such
supplemental indenture, without the consent of the Holders of each Security
so affected.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been
included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of holders of Securities of such
series with respect to such covenant or provision, shall be deemed not to
affect the rights under this Indenture of the holders of Securities of any
other series.
Upon the request of the Issuer, accompanied by a copy of a
resolution of the Board of Directors certified by the secretary or an
assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of Securityholders as aforesaid and other documents, if any,
required by Section 6.1, the Trustee shall join with the Issuer in the
execution of such supplemental indenture unless such supplemental indenture
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section, the
Issuer shall mail a notice thereof by first class mail to the Holders of
Securities of each series affected thereby at their addresses as they shall
appear on the registry books of the Issuer, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Issuer to mail
such notice, or any defect therein, shall not, however, in any way impair or
affect the validity of any such supplemental indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations,
duties and immunities under this Indenture of the Trustee, the Issuer and the
Holders of Securities of each series affected thereby shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 7.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Seven complies with
the applicable provisions of this Indenture.
SECTION 7.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture. If the Issuer or
the Trustee shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such supplemental indenture
may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.1 Issuer May Consolidate, etc., on Certain Terms.
The Issuer covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
Person, unless (i) either the Issuer shall be the continuing corporation, or
the successor corporation or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall be
a corporation organized under the laws of the United States of America or any
State thereof and shall expressly assume the due and punctual payment of the
principal of and interest on all the Securities, according to their tenor, and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed or observed by the Issuer, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition of this Indenture.
SECTION 8.2 Successor Corporation Substituted. In case of any
such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Issuer, with the same effect as if it
had been named herein. Such successor corporation may cause to be signed, and
may issue either in its own name or in the name of the Issuer prior to such
succession any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Issuer and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Issuer and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor
corporation thereafter shall cause to be signed and delivered to the Trustee
for that purpose. All of the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a
conveyance by way of lease) the Issuer or any successor corporation which
shall theretofore have become such in the manner described in this Article
shall be discharged from all obligations and covenants under this Indenture
and the Securities and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 5.1 and 5.2, may receive an Opinion of
Counsel, prepared in accordance with Section 10.5, as conclusive evidence that
any such consolidation, merger, sale, lease or conveyance, and any such
assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 9.1 Satisfaction and Discharge of Indenture. If at
any time (a) the Issuer shall have paid or caused to be paid the principal of
and interest on all the Securities of any series Outstanding hereunder (other
than Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 2.9) as and when the
same shall have become due and payable, or (b) the Issuer shall have delivered
to the Trustee for cancellation all Securities of any series theretofore
authenticated (other than any Securities of such series which shall have been
destroyed, lost or stolen and which shall have been replaced or paid as
provided in Section 2.9) or (c) (i) all the Securities of such series not
theretofore delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and (ii)
the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by
the Trustee or any paying agent to the Issuer in accordance with Section 9.4)
or direct obligations of the United States of America, backed by its full
faith and credit ("U.S. Government Obligations"), maturing as to principal and
interest in such amounts and at such times as will insure the availability of
cash sufficient (in case U.S. Government Obligations have been so deposited,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee) to pay at maturity or upon redemption all Securities of such series
(other than any Securities of such series which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in
Section 2.9) not theretofore delivered to the Trustee for cancellation,
including principal and interest due or to become due on or prior to such date
of maturity as the case may be, and if, in any such case, the Issuer shall
also pay or cause to be paid all other sums payable hereunder by the Issuer
with respect to Securities of such series, then this Indenture shall cease to
be of further effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange of Securities of such
series, and the Issuer's right of optional redemption, if any, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities,
(iii) rights of holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration) and remaining rights of the holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations and immunities of the
Trustee hereunder (v) the rights of the Securityholders of such series as
beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2), and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel and at the cost and expense of
the Issuer, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture with respect to such series; provided, that
the rights of Holders of the Securities to receive amounts in respect of
principal of and interest on the Securities held by them shall not be delayed
longer than required by then-applicable mandatory rules or policies of any
securities exchange upon which the Securities are listed. The Issuer agrees
to reimburse the Trustee for any costs or expenses thereafter reasonably and
properly incurred and to compensate the Trustee for any services thereafter
reasonably and properly rendered by the Trustee in connection with this
Indenture or the Securities of such series.
SECTION 9.2 Application by Trustee of Funds Deposited for
Payment of Securities. Subject to Section 9.4, all moneys deposited with
the Trustee pursuant to Section 9.1 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including
the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which
such moneys have been deposited with the Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Indenture or any
defeasance under Article Twelve with respect to Securities of any series, all
moneys then held by any paying agent under the provisions of this Indenture
with respect to such series of Securities shall, upon demand of the Issuer, be
repaid to it or paid to the Trustee and thereupon such paying agent shall be
released from all further liability with respect to such moneys.
SECTION 9.4 Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or
any paying agent for the payment of the principal of or interest on any
Security of any series and not applied but remaining unclaimed for two years
after the date upon which such principal or interest shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or
unclaimed property law, be repaid to the Issuer by the Trustee for such series
or such paying agent, and the Holder of the Security of such series shall,
unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, thereafter look only to the Issuer for
any payment which such Holder may be entitled to collect, and all liability of
the Trustee or any paying agent with respect to such moneys 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 Issuer cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, The City and State of New York, 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 Issuer.
ARTICLE TEN
MISCELLANEOUS PROVISIONS
SECTION 10.1 Incorporators, Stockholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any Indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities by the
holders thereof and as part of the consideration for the issue of the
Securities.
SECTION 10.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders. Nothing in this Indenture or in the
Securities, expressed or implied, shall give or be construed to give to any
person, firm or corporation, other than the parties hereto and their
successors and the Holders of the Securities, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole
benefit of the parties hereto and their successors and of the Holders of
the Securities.
SECTION 10.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors
and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on Issuer, Trustee and
Securityholders. Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the Trustee or by
the Holders of Securities to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to Murphy Oil Corporation, 200 Peach Street, P.O.
Box 7000, El Dorado, Arkansas 71731-7000. Any notice, direction, request or
demand by the Issuer or any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes if in writing
and by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed to the Corporate Trust Office,
Attention: Corporate Trustee Administration Department.
Where this Indenture provides for notice to Holders, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security
register. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee,
but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
and Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture (other than the certificate required
by Section 3.5) shall include (a) a statement that the person making such
certificate or opinion has read such covenant or condition, (b) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer
knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know
that the same are erroneous. Any certificate, statement or opinion of counsel
may be based, insofar as it relates to factual matters, information with
respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer of officers of the
Issuer, unless such counsel knows that the certificate, statement or opinion
or representations with respect to the matters upon which his certificate,
statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant
or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or
representations with respect to the accounting matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or
in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with the Trustee shall contain a statement that such firm is
independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or the date fixed for redemption or repayment of any such Security
shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with
the same force and effect as if made on the date of maturity or the date fixed
for redemption or repayment, and no interest shall accrue on the payment so
deferred for the period after such date.
SECTION 10.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by or with
another provision (an "incorporated provision") included in this Indenture by
operation of Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
SECTION 10.8 New York Law to Govern. This Indenture and
each Security shall be deemed to be a contract under the laws of the State
of New York, and for all purposes shall be construed in accordance with the
laws of such State, except as may otherwise be required by mandatory
provisions of law.
SECTION 10.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 10.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
SECTION 10.11 Separability Clause. In case any provision of
this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 2.3 for Securities of such series.
SECTION 11.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30
days and not more than 60 days prior to the date fixed for redemption to such
Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given,
whether or not the Holder receives the notice. Failure to give notice by
mail, or any defect in the notice to the Holder of any Security of a series
designated for redemption as a whole or in part shall not affect the validity
of the proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender
of such Securities, that such redemption is pursuant to the mandatory or
optional sinking fund, or both, if such be the case, that interest accrued to
the date fixed for redemption will be paid as specified in such notice and
that on and after said date interest thereon or on the portions thereof to be
redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or
Securities of such series in principal amount equal to the unredeemed portion
thereof will be issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee in the name and at the expense of the Issuer.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the
Trustee or with one or more paying agents (or, if the Issuer is acting as its
own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the redemption date
all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for
redemption. If less than all the Outstanding Securities of a series are to
be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to
the date on which notice of redemption is to be issued an Officers'
Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed,
the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such Series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall promptly notify the Issuer in writing of the Securities of
such series selected for redemption and, in the case of any Securities of such
series selected for partial redemption, the principal amount thereof to be
redeemed. For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities of any
series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
SECTION 11.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable
on the date and at the place stated in such notice at the applicable
redemption price, together with interest accrued to the date fixed for
redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest
accrued to said date) interest on the Securities or portions of Securities so
called for redemption shall cease to accrue and, except as provided in
Sections 5.5 and 9.4, such Securities shall cease from and after the date
fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the
Issuer at the applicable redemption price, together with interest accrued
thereon to the date fixed for redemption; provided that any semiannual payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable to the Holders of such Securities registered as such on the relevant
record date subject to the terms and provisions of Section 2.4 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series , of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 11.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility
for selection for redemption if they are identified by registration and
certificate number in a written statement signed by an authorized officer of
the Issuer and delivered to the Trustee at least 40 days prior to the last
date on which notice of redemption may be given as being owned of record and
beneficially by, and not pledged or hypothecated by either (a) the Issuer or
(b) an entity specifically identified in such written statement directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer.
SECTION 11.5 Mandatory and Optional Sinking Funds. The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional
sinking fund payment". The date on which a sinking fund payment is to be made
is herein referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking
fund payment with respect to any series of Securities in cash, the Issuer
may at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption
pursuant to the mandatory sinking fund) by the Issuer or receive credit for
Securities of such series (not previously so credited) theretofore
purchased or otherwise acquired (except as aforesaid) by the Issuer and
delivered to the Trustee for cancellation pursuant to Section 2.10, (b)
receive credit for optional sinking fund payments (not previously so
credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or
credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the sixtieth day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.5)
signed by an authorized officer of the Issuer (a) specifying the portion of
the mandatory sinking fund payment to be satisfied by payment of cash and the
portion to be satisfied by credit of Securities of such series, (b) stating
that none of the Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or
cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to
the Trustee with such written statement (or reasonably promptly thereafter if
acceptable to the Trustee). Such written statement shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of
the Issuer, on or before any such sixtieth day, to deliver such written
statement and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Issuer (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of
such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $50,000 (or a lesser sum if the Issuer shall so request) with
respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of
Securities of such series at the sinking fund redemption price together with
accrued interest to the date fixed for redemption. If such amount shall be
$50,000 or less and the Issuer makes no such request then it shall be carried
over until a sum in excess of $50,000 is available. The Trustee shall select,
in the manner provided in Section 11.2, for redemption on such sinking fund
payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by
the Issuer) inform the Issuer of the serial numbers of the Securities of such
series (or portions thereof) so selected. The Trustee, in the name and at the
expense of the Issuer (or the Issuer, if it shall so request the Trustee in
writing) shall cause notice of redemption of the Securities of such series to
be given in substantially the manner provided in Section 11.2 (and with the
effect provided in Section 11.3) for the redemption of Securities of such
series in part at the option of the Issuer. The amount of any sinking fund
payments not so applied or allocated to the redemption of Securities of such
series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the
stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other moneys, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or prior to each sinking fund payment date, the Issuer shall
pay to the Trustee in cash or shall otherwise provide for the payment of all
interest accrued to the date fixed for redemption on Securities to be redeemed
on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any
Securities of a series with sinking fund moneys or mail any notice of
redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such
Securities or of any Event of Default except that, where the mailing of
notice of redemption of any Securities shall theretofore have been made,
the Trustee shall redeem or cause to be redeemed such Securities, provided
that it shall have received from the Issuer a sum sufficient for such
redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur,
and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Four and held for the payment of all such
Securities. In case such Event of Default shall have been waived as
provided in Section 4.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
ARTICLE TWELVE
DEFEASANCE
SECTION 12.1 Issuer's Option to Effect Defeasance. The Issuer may
at its option, by Board Resolution, at any time, elect to defease the Issuer's
obligations under the Outstanding Securities of any series and this Indenture
in accordance with either Section 12.2 or Section 12.3 upon compliance with
the conditions set forth below in this Article Twelve. Notwithstanding any
such election, the terms of the Securities of such series shall remain in full
force and effect.
SECTION 12.2 Defeasances and Discharge. Upon the Issuer's
exercise of the option set forth in Section 12.1 applicable to this
Section, and after the expiration of the 90-day (or other) period referred
to in clause (6)(ii) of Section 12.4, the Issuer shall be deemed to have
been discharged from its obligations with respect to the Outstanding
Securities of such series on the date the conditions set forth below are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance
means that the Issuer shall be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such
series and to have satisfied all its other obligations under the Securities
of such series and this Indenture insofar as the Securities of such series
are concerned (and the Trustee, upon an Issuer Order and at the expense of
the Issuer, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (A) the rights of holders of Outstanding Securities
of such series to receive, solely from the trust fund described in Section
12.4 and as more fully set forth in such Section, payments in respect of
the principal of and interest on the Securities of such series when such
payments are due, (B) the Issuer's obligations with respect to such
Securities of such series under Sections 2.8, 2.9 and 3.2, (C) the rights,
powers, trusts, duties, and immunities of the Trustee hereunder, including
but not limited to Article Five, (D) the Issuer's right of optional
redemption, if any, (E) the rights of Holders to receive mandatory sinking
fund payments, if any, and (F) this Article Twelve. Subject to compliance
with this Article Twelve, the Issuer may exercise its option under this
Section 12.2 notwithstanding the prior exercise of its option under Section
12.3 with respect to the Securities of such series.
SECTION 12.3 Covenant Defeasance. Upon the Issuer's exercise of
the option set forth in Section 12.1 applicable to this Section, and after the
expiration of the 90-day (or other) period referred to in clause (6)(ii) of
Section 12.4, the Issuer shall be released from its obligations under Sections
3.9 and 3.10, with respect to the Outstanding Securities of any series on and
after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of such series, the Issuer
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section, 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, and such omission to comply shall not constitute a
default or Event of Default under Section 4.1(d), but, except as specified
above, the remainder of this Indenture and the Securities of such series shall
be unaffected thereby.
SECTION 12.4 Conditions to Defeasance. The following shall be the
conditions to application of either Section 12.2 or Section 12.3 to the
Outstanding Securities of any series.
(1) The Issuer shall irrevocably have deposited or caused
to be deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the holders
of Securities of such series (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest, if any, in respect thereof in accordance
with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in each case, 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 to pay and
discharge the principal of and interest, if any, on the
Outstanding Securities of such series on the stated maturity of
such principal or interest or earlier date of redemption.
(2) No Event of Default or event which after notice or lapse
of time or both would become an Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit.
(3) Such defeasance or covenant defeasance shall not cause the
Trustee for the Securities of such series to have a conflicting
interest as defined in Section 310(b) of the Trust Indenture Act of
1939 with respect to any Securities of the Issuer.
(4) Such defeasance or covenant defeasance shall be permitted
by, and shall not result in breach or violation of, or constitute a
default under, this Indenture or any other agreement or instrument to
which the Issuer is a party or by which it is bound.
(5) Such defeasance or covenant defeasance shall not cause any
Securities of such series then listed on any registered national
securities exchange under the Securities Exchange Act of 1934, as
amended, to be delisted.
(6) In the case of an election under Section 12.2,
the Issuer shall have delivered to the Trustee an Opinion of
Counsel stating (i) that the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling to
the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities of such series
will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such defeasance had
not occurred, and (ii) that after the passage of 90 days (or such
other period of time as then required by the non-insider
preference provisions of any applicable federal bankruptcy laws)
following the deposit, the trust funds will not be subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally, and (iii) that
there would not occur any violation of the Investment Company Act
of 1940, as amended, on the part of the Issuer, the trust funds
representing such deposit or the Trustee as a result of such
deposit and the related exercise of the Issuer's election under
this Article Twelve.
(7) In the case of an election under Section 12.3, the
Issuer shall have delivered to the Trustee an Opinion of Counsel
to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and
will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if
such covenant defeasance had not occurred. Such Opinion shall also
cover the matters referred to in clauses (ii) and (iii) of Section
12.4(6).
(8) The Issuer shall have delivered to the Trustee an
irrevocable Issuer Order to apply the monies so deposited towards
payment of all indebtedness on the Securities of such series at
their stated maturity or earlier date of redemption, and an
Officers' Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to either the
defeasance under Section 12.2 or the covenant defeasance under
Section 12.3 (as the case may be) have been complied with.
SECTION 12.5. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Reinstatement; Miscellaneous. Subject to the provisions of
Section 9.4, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee --
collectively, for purposes of this Section 12.5, the "Trustee") pursuant to
Section 12.4 in respect of the Outstanding Securities of any series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
the Securities of such series and this Indenture, to the payment, either
directly or through any paying agent (including the Issuer acting as its own
paying agent), as the Trustee may determine, to the holders of Securities of
such series, of all sums due and to become due thereon in respect of principal
and interest, if any, but such money need not be segregated from other funds
except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 9.1 or 12.4 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of the Outstanding Securities of such
series.
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 9.1 or 12.4 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Issuer's obligations under this Indenture and the Securities of such
series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.1 or 12.4; provided that if the Issuer has made any
payment of principal of or interest on any Securities of such series because
of the reinstatement of its obligations, the Issuer shall be subrogated to the
rights of the Holders of such Securities of such series to receive such
payment from the money or U.S. Government Obligations held by the Trustee.
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 , 1994.
MURPHY OIL CORPORATION
By________________________
[CORPORATE SEAL]
Attest:
By________________________
CHEMICAL BANK, as Trustee
By________________________
[CORPORATE SEAL]
Attest:
By________________________
STATE OF ARKANSAS )
) ss.:
COUNTY OF )
On this day of before me personally came
to me personally known, who, being by me duly sworn, did
depose and say that he resides at that he is a
of MURPHY OIL CORPORATION, one of the corporations described in and
which executed the above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
_________________________
Notary Public
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this day of before me personally came
to me personally known, who, being by me duly sworn, did
depose and say that he resides at that he is a
of CHEMICAL BANK, one of the corporations described in and which
executed the above instrument; that he knows the corporate 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.
[NOTARIAL SEAL]
_________________________
Notary Public
EXHIBIT 4.2a
CUSIP NO. PRINCIPAL AMOUNT:
REGISTERED NO.
MURPHY OIL CORPORATION
MEDIUM-TERM FIXED RATE NOTE, SERIES __
Due From Nine Months to __ Years From Date of Issue
___
/__/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as its requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
If applicable, the following will be completed solely for purposes
of the U.S. Federal Income Tax "Original Issue Discount" rules, as that
term is defined in Section 1273 of the Internal Revenue Code of 1986, as
amended. This information is provided solely for the purposes of applying
the U.S. Federal Income Tax Original Issue Discount ("OID") rules to the
certificate and is based on an interpretation of proposed Treasury
regulations. The Issue Date of this Certificate is ____________________.
This Certificate has been issued with ___________________ of OID per $1,000
of initial principal amount. The annual yield to maturity is ____% based
on __________ compounding. The amount of OID attributable to the initial
accrual period is _______ per $1,000 of initial principal amount, computed
under the [exact] [approximate] method as defined in proposed Treasury
regulations.
ORIGINAL ISSUE DATE: INTEREST RATE PER MATURITY DATE:
ANNUM:
ISSUE PRICE: % REDEEMABLE ON OR
AFTER: (AT OPTION OF
THE COMPANY)
INITIAL DATE ON WHICH THE NOTE
IS REPAYABLE AT THE OPTION OF
THE HOLDER:
INITIAL REPAYMENT PERCENTAGE: INITIAL REDEMPTION
PERCENTAGE:
ANNUAL REPAYMENT PERCENTAGE
REDUCTION:
ANNUAL REDEMPTION PERCENTAGE DEFAULT RATE: (Only
REDUCTION: applicable
if Note issued at
original issue
discount)
DEPOSITARY: (Only
applicable if Note is
a Global Note
INTEREST PAYMENT DATES:
OID DEFAULT AMOUNTS: (Only SINKING FUND:
applicable if Note issued at
original issue discount)
OTHER TERMS:
MURPHY OIL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), for value received,
hereby promises to pay to
__________________________________________________________
________________________________, or registered assigns, the principal sum of
_______________________________________ at the office or agency of the Company
in the Borough of Manhattan, The City of New York, on the maturity date shown
above, or if such date is not a Business Day (as defined below), the next
succeeding Business Day (the "Maturity Date"), in such coin or currency of the
United States of America as at the time of payment shall be legal tender for
the payment of public and private debts, and to pay interest on said principal
sum at said office or agency at the rate per annum (computed on the basis of a
360-day year of twelve 30-day months) shown above, in like coin or currency,
semi-annually on each Interest Payment Date set forth above from and after the
date of this Note and on the Maturity Date or date of redemption or repayment,
if any, until payment of said principal sum has been made or duly provided.
Unless this Note is a Note which has been issued upon transfer of, in exchange
for, or in replacement of a predecessor Note, interest on this Note shall
accrue from the Original Issue Date indicated above. If this Note has been
issued upon transfer of, in exchange for, or in replacement of a predecessor
Note, interest on this Note shall accrue from the last Interest Payment Date
to which interest was paid on such predecessor Note or, if no interest was
paid on such predecessor Note, from the Original Issue Date indicated above.
The first payment of interest on a Note originally issued and dated between a
Record Date (as defined below) and an Interest Payment Date will be due and
payable on the Interest Payment Date following the next succeeding Record Date
to the registered owner on such next succeeding Record Date. Subject to
certain exceptions provided in the Indenture referred to hereinbelow, the
interest so payable on any Interest Payment Date will be paid to the person in
whose name this Note is registered at the close of business on the fourteenth
calendar day next preceding such Interest Payment Date (each such date a
"Record Date") and interest payable at maturity or upon redemption or
repayment (other than a Maturity Date, redemption date or repayment date which
is an Interest Payment Date) will be paid to the person to whom said principal
sum is payable.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof on the Maturity
Date or a redemption or repayment date, if any) will be paid by check mailed
to the person entitled thereto at his or her last address as it appears on the
registry books of the Company (or by wire transfer to those persons holding
Notes with an aggregate principal amount of greater than $10 million) to such
account as may have been designated by such Holder as set forth herein.
Payment of the principal premium, if any, and interest, if any, on this
Note due to the Holder hereof at maturity or upon earlier redemption or
repayment will be made, in immediately available funds, upon presentation of
this Note at the office or agency of the Company maintained for that purpose
in the Borough of Manhattan, The City of New York.
Any payment on this Note due on any day which is not a Business Day
in The City of New York need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
due date and no interest shall accrue for the period from and after such date.
If this Note is a Global Note as specified above, the following
legend is applicable: "UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
"Business Day" shall mean, as used herein with respect to any
particular location, each Monday, Tuesday, Wednesday, Thursday or Friday which
is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
Additional provisions of this Note are contained following the
signature lines and certificate of authentication hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to hereinbelow.
IN WITNESS WHEREOF, MURPHY OIL CORPORATION has caused this instrument
to be signed by its duly authorized officers, and has caused a facsimile of
its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MURPHY OIL CORPORATION
This is one of the Securities of the
series designated herein referred to
in the within-mentioned Indenture By:___________________
Name
Title
CHEMICAL BANK,
as Trustee,
Attest:
By:_________________________
Authorized Officer
____________________
Secretary
[SEAL]
MURPHY OIL CORPORATION
MEDIUM-TERM FIXED RATE NOTE, SERIES __
Due From Nine Months to __ Years From Date of Issue
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (the "Securities")
of the series hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of ______, 1994, (the "Indenture"), duly
executed and delivered by the Company to Chemical Bank, as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, obligations,
duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities. The Securities may be issued in one or more
series, which different series may be issued in various aggregate principal
amounts, may mature at different times, may bear interest at different
rates, may be subject to different redemption provisions (if any), may be
subject to different sinking, purchase or analogous funds (if any), and may
otherwise vary as in the Indenture provided or permitted. This Note is one
of a series of the Securities, which series is limited in aggregate
principal amount to $__________ designated as the Medium-Term Notes, Series
B (the "Notes") of the Company. The Notes may mature at different times,
bear interest at different rates, be redeemable at different times or not
at all, be repayable at the option of the holder at different times or not
at all, be issued at an original issue discount and be extendable.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 51% in aggregate
principal amount of the Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner
the rights of the Holders of the Securities of each such series; provided,
however, that no such supplemental indenture shall (i) extend the final
maturity of any Security, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of any
interest thereon, or impair or affect the rights of any Holder to institute
suit for the payment thereof, without the consent of the Holder of each
Security so affected, or (ii) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such supplemental
indenture, without the consent of the Holders of each Security affected. It
is also provided in the Indenture that, with respect to certain defaults or
Events of Default regarding the Securities of any series, prior to any
declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or
certain series of the Securities) may on behalf of the Holders of all of the
Securities of such series (or all or certain series of the Securities, as the
case may be) waive any such past default or Event of Default and its
consequences. Any such consent or waiver by the Holder of this Security
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Security and
any Securities which may be issued upon the registration of transfer hereof or
in exchange or substitution herefor, irrespective of whether or not any
notation thereof is made upon this Security or such other Securities.
If so provided above under the heading "Redeemable on or after (at
option of the Company)", this Note may be redeemed by the Company on and after
the date so indicated. On and after the date, if any, from which this Note
may be redeemed, this Note may be redeemed in whole or in part, at the option
of the Company, at a redemption price equal to the product of the principal
amount of this Note to be redeemed multiplied by the Redemption Percentage.
The Redemption Percentage shall initially equal the Initial Redemption
Percentage specified above, and shall decline at each anniversary of the
initial date that this Note is redeemable by the amount of the Annual
Redemption Percentage Reduction specified above, until the Redemption
Percentage is equal to 100%.
If so provided above, this Note will be repayable in whole or in part
in increments of $1,000, provided that the remaining principal amount of any
Note surrendered for partial repayment shall be at least $100,000, on any
Business Day on or after the "Initial Date on Which the Note is Repayable at
the Option of the Holder" (as stated above), at the option of the Holder, at
100% of the principal amount to be repaid, plus accrued interest, if any, to
the repayment date. In order for the exercise of the option to be effective
and the Notes to be repaid, the Company must receive at the applicable address
of the paying agent set forth below or at such other place or places of which
the Company shall from time to time notify the Holder of the within Note, on
or before the fifteenth, but not earlier than the twenty-fifth calendar day,
or, if such day is not a Business Day, the next succeeding Business Day, prior
to the repayment date, either (i) this Note, with the form below entitled
"Option to Elect Repayment" duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth (a) the name, address and telephone number of the Holder of this Note,
(b) the principal amount of this Note and the amount of this Note to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby, and (d) a guarantee stating that the Company will receive this Note,
with the form below entitled "Option to Elect Repayment" duly completed, not
later than 5 Business Days after the date of such telegram, telex, facsimile
transmission or letter (and this Note and form duly completed are received by
the Company by such fifth Business Day). Any such election shall be
irrevocable. The address to which such deliveries are to be made is [
], Attention: [
] (or, at such other places as the Company shall notify the Holders of the
Notes). All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Note for repayment will be determined by the
Company, whose determination will be final and binding.
If this Note is issued with an original issue discount, (i) if an
Event of Default with respect to the Notes shall have occurred and be
continuing, the amount of principal of this Note which may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture, shall be determined in the manner set forth under the
heading "OID Default Amount" above, and (ii) in the case of a default of
payment in principal upon acceleration, redemption, repayment at the option of
the holder or at the stated maturity hereof, in lieu of any interest otherwise
payable, the overdue principal of this Note shall bear interest at a rate of
interest per annum equal to the Default Rate stated above (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such acceleration, redemption, repayment at the option of the
holder or stated maturity, as the case may be, to the date payment has been
made or duly provided for or such default has been waived in accordance with
the terms of the Indenture.
The Notes are issuable in fully registered global or definitive form
without coupons in denominations of $100,000 and integral multiples of $1,000
in excess thereof. Upon due presentment for registration of transfer of this
Note at the office or agency of the Company in the Borough of Manhattan, The
City of New York, a new Note or Notes for an equal aggregate principal amount
and like interest rate and maturity will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture and to
the limitations described below if applicable, without charge except for any
tax or other governmental charge imposed in connection therewith.
If this Note is a Global Note (as specified above), this Note is
exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive
Notes in registered form or (z) an Event of Default with respect to the Notes
represented hereby has occurred and is continuing. If this Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Notes in registered form, bearing interest (if any) at the same rate
or pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Stated Maturity and other terms and of differing
denominations aggregating a like amount.
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 in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
The Company, the Trustee and any paying agent and any authorized
agent of the Company, the Trustee and any paying agent may deem and treat the
registered Holder hereof as the absolute owner of this Note (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment of, or on account
of, the principal hereof and premium, if any, and subject to the provisions on
the face hereof, interest hereon and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any authorized agent of the
Company, the Trustee or any paying agent shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for moneys payable on this Security.
No recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness evidenced thereby, shall
be had against any incorporator, stockholder, officer or director, as such, of
the Company or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof as part of the consideration for
the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
____________________
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at
___________________________________________________________
_________________________ (please print or typewrite name and address of the
undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the paying agent set forth above or at such other place or places
of which the Company shall from time to time notify the holder of the within
Note, on or before the fifteenth, but not earlier than the twenty-fifth,
calendar day, or, if such day is not a Business Day, the next succeeding
Business Day, prior to the repayment date, (i) this Note, with this "Option to
Elect Repayment" form duly completed, or (ii) a telegram, telex, facsimile
transmission, or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth (a) the name,
address and telephone number of the Holder of the Note, (b) the principal
amount of the Note and the amount of the Note to be repaid, (c) a statement
that the option to elect repayment is being exercised thereby, and (d) a
guarantee stating that the Note to be repaid with the form entitled "Option to
Elect Repayment" on the addendum to the Note duly completed will be received
by the Company not later than 5 Business Days after the date of such telegram,
telex, facsimile transmission or letter (and such Note and form duly completed
are received by the Company by such fifth Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: _______________________; and
specify the denomination or denominations (which shall be $100,000 or an
integral multiple of $1,000 in excess thereof) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in
the absence of any specification, one such Note will be issued for the portion
not being repaid): ________________________.
Date:
___________________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name as
written upon page 3 of the Note in
every particular without
alteration or enlargement or any
other change whatsoever.
_______________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM --as tenants in common UNIF GIFT MIN ACT--_____ CUSTODIAN _____
TEN ENT --as tenants by the (Cust) (Minor)
entireties
JT TEN --as Joint tenants Under Uniform Gifts to Minors Act
with right of
survivorship and not
as tenants in common ________________________
(State)
Additional abbreviations may also be used though not in the above
list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[Please Insert Social Security or Other Identifying Number of Assignee]
__________________________________
___________________________________________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE]
___________________________________________________________________________
___________________________________________________________________________
the within Note of MURPHY OIL CORPORATION and all rights thereunder, hereby
irrevocably constituting and appointing such person attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:____________________________ ____________________________
____________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatever.
EXHIBIT 4.2(b)
CUSIP NO. PRINCIPAL AMOUNT:
REGISTERED NO.
MURPHY OIL CORPORATION
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due From Nine Months to __ Years From Date of Issue
___
/__/ Check box if the Note is a Global Note.
Applicable if the Note is a Global Note:
[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Issuer
or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: MATURITY DATE:
INTEREST RATE BASIS: INDEX MATURITY:
REDEEMABLE ON OR AFTER (AT SPREAD MULTIPLIER: SPREAD: +
OPTION OF THE COMPANY): -
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: INTEREST PAYMENT PERIOD:
INITIAL REDEMPTION INTEREST RATE RESET
PERCENTAGE: PERIOD:
INTEREST RESET DATES:
CALCULATION AGENT: ANNUAL REDEMPTION DEPOSITARY:
PERCENTAGE (Only applicable if this
REDUCTION: Note is a Global Note)
INITIAL DATE ON WHICH THE
NOTE IS REPAYABLE AT THE
OPTION OF THE HOLDER:
INITIAL REPAYMENT PERCENTAGE: SINKING FUND:
ANNUAL REPAYMENT PERCENTAGE
REDUCTION:
INTEREST PAYMENT DATES:
INTEREST CALCULATION DATES:
INTEREST DETERMINATION DATES:
OTHER TERMS:
MURPHY OIL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), for value received,
hereby promises to pay to
, or registered assigns, the principal sum
of at the office or agency of the
Company in the Borough of Manhattan, The City of New York, on the maturity
date shown above, or if such date is not a Business Day, the next succeeding
Business Day (the "Maturity Date"), in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts, and to pay interest monthly, quarterly,
semiannually or annually as specified above under "Interest Payment Period",
on the Interest Payment Dates specified above, commencing with the first
Interest Payment Date specified above following the Original Issue Date
specified above, and on the Maturity Date or date of redemption or repayment,
if any, on said principal sum at said office or agency, in like coin or
currency, at a rate per annum equal to the Initial Interest Rate specified
above until the first Interest Reset Date specified above following the
Original Issue Date specified above and thereafter at a rate per annum
determined in accordance with the provisions hereinbelow under the heading
"Determination of Interest Rate Per Annum for Commercial Paper Rate Notes",
"Determination of Interest Rate Per Annum for Prime Rate Notes",
"Determination of Interest Rate Per Annum for LIBOR Notes", "Determination of
Interest Rate Per Annum for Treasury Rate Notes", "Determination of Interest
Rate Per Annum for CD Rate Notes" or "Determination of Interest Rate Per Annum
for Federal Funds Rate Notes", depending upon whether the Interest Rate Basis
is Commercial Paper Rate, Prime Rate, LIBOR, Treasury Rate, CD Rate or Federal
Funds Rate, as specified above; provided, however, that if any Interest
Payment Date specified above would otherwise fall on a day that is not a
Business Day (as defined herein), such Interest Payment Date will be the
following day that is a Business Day, except that in the event that the
Interest Rate Basis for this Note is LIBOR, if such day falls in the next
calendar month, such Interest Payment Date will be the next preceding day that
is a Business Day. Interest on this Note shall accrue (a) if the rate at
which interest on this Note is payable shall be adjusted monthly, quarterly,
semiannually or annually, as specified above under "Interest Rate Reset
Period" and as determined in accordance with the provisions hereinbelow, from
the Interest Payment Date next preceding the date of this Note to which
interest has been paid, unless the date hereof is an Interest Payment Date to
which interest has been paid, in which case from the date of this Note, or
unless no interest has been paid on this Note, in which case from the Original
Issue Date specified above, until payment of said principal sum has been made
or duly provided for or (b) if the rate at which interest on this Note is
payable shall be adjusted daily or weekly, as specified above under "Interest
Rate Reset Period" and as determined in accordance with the provisions
hereinbelow, from the Record Date (as defined herein) next preceding the date
of this Note through which interest has been paid, unless the date hereof is a
Record Date through which interest has been paid, in which case from the day
after the date of this Note, or unless no interest has been paid on this Note,
in which case from the Original Issue Date specified above, until payment of
said principal sum has been made or duly provided for; provided, however, that
if the Original Issue Date is after any Record Date preceding any Interest
Payment Date and before such Interest Payment Date, interest on this Note
shall accrue from such Interest Payment Date unless the rate at which interest
on this Note is payable shall be adjusted weekly, as provided above under
"Interest Rate Reset Period" and as determined in accordance with the
provisions hereinbelow, in which case interest on this Note shall accrue from
such Record Date, or, in either case, if no interest has been paid on this
Note, from the Original Issue Date specified above; provided, further, that
if the Company shall default in the payment of interest due on any Interest
Payment Date, then interest on this Note shall accrue from the next preceding
Interest Payment Date or Record Date, as the case may be, to which interest
has been paid, or, if no interest has been paid on this Note, from the
Original Issue Date specified above. Subject to certain exceptions
provided in the Indenture referred to below, the interest so payable on any
Interest Payment Date will be paid to the person in whose name this Note is
registered at the close of business on the Record Date next preceding such
Interest Payment Date, and interest payable at maturity or upon earlier
redemption or repayment (other than a Maturity Date or redemption or
repayment date which is an Interest Payment Date) will be paid to the
person to whom said principal sum is payable; provided, however, that the
first payment of interest on a Note originally issued between a Record Date
and an Interest Payment Date will be made on the Interest Payment Date
following the next succeeding Record Date to the registered owner on such
next succeeding Record Date. "Record Date" shall mean the fifteenth day
prior to any Interest Payment Date. "Business Day" shall mean, as used
herein with respect to any particular location, each Monday, Tuesday,
Wednesday, Thursday or Friday which is (a) not a day on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close and (b) in the event that the Interest Rate Basis
for this Note is LIBOR, a London Business Day. "London Business Day" shall
mean any day on which dealings in deposits in U.S. dollars are transacted
in the London interbank market.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof on the Maturity
Date or a redemption or repayment date, if any) will be made by check
mailed to the person entitled thereto at his or her last address as it
appears on the registry books of the Company (or by wire transfer to those
persons holding Notes with an aggregate principal amount of greater than
$10 million) to such account as may have been appropriately designated by
such Holder as set forth herein. Payment of the principal premium, if
any, and interest, if any, on this Note due to the Holder hereof at
maturity or upon earlier redemption or repayment will be made, in
immediately available funds, upon presentation of this Note at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York.
Any payment on this Note due on any day which is not a Business Day
in The City of New York need not be made on such day, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
due date and no interest shall accrue for the period from and after such date.
If this Note is a Global Note as specified above, the following
legend is applicable: "UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART
FOR NOTES IN DEFINITIVE REGISTERED FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO THE NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY."
Additional provisions of this Note are contained following the
signature lines and certificate of authentication hereof and such provisions
shall for all purposes have the same effect as though fully set forth at this
place.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to hereinbelow.
IN WITNESS WHEREOF, MURPHY OIL CORPORATION has caused this
instrument to be signed by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION MURPHY OIL CORPORATION
This is one of the Securities of the
series designated herein referred to
in the within-mentioned Indenture By:____________________
Name
Title
CHEMICAL BANK,
as Trustee,
Attest:
By:___________________________________
Authorized Officer
____________________
Secretary
[SEAL]
MURPHY OIL CORPORATION
MEDIUM-TERM FLOATING RATE NOTE, SERIES __
Due From Nine Months to __ Years From Date of Issue
This Note is one of a duly authorized issue of debentures, notes,
bonds or other evidences of indebtedness of the Company (the "Securities"),
all issued or to be issued under and pursuant to an indenture dated as of
______, 1994, (the "Indenture"), duly executed and delivered by the
Chemical Bank, as Trustee (the "Trustee"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description
of the rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the Holders of the Securities. The Securities may
be issued in one or more series, which different series may be issued in
various aggregate principal amounts, may mature at different times, may
bear interest at different rates, may be subject to different redemption
provisions (if any), may be subject to different sinking, purchase or
analogous funds (if any), and may otherwise vary as in the Indenture
provided or permitted. This Note is one of a series of the Securities,
which series is limited in aggregate principal amount to $_______,
designated as the Medium-Term Notes, Series A (the "Notes"), of the
Company. The Notes may mature at different times, bear interest at
different rates, be redeemable at different times or not at all, be
repayable at the option of the Holder at different times or not at all and
be extendable.
The interest rate in effect from the date of issue to the first
Interest Reset Date shall be the Initial Interest Rate specified above.
Commencing with the first Interest Reset Date specified above following the
Original Issue Date specified above, the rate at which interest on this
Note is payable shall be adjusted daily, weekly, monthly, quarterly,
semiannually or annually as specified above under "Interest Rate Reset
Period"; provided, however, that the interest rate in effect hereon for the
10 calendar days immediately prior to the maturity hereof will be that in
effect on the tenth day next preceding the Maturity Date. Each such
adjusted rate shall be applicable from and including the Interest Reset
Date to which it relates to but not including the next succeeding Interest
Reset Date or until maturity, as the case may be. Subject to applicable
provisions of law and except as specified herein, on each Interest Reset
Date, the rate of interest on this Note shall be the rate determined with
respect to the Interest Determination Date next preceding such Interest
Reset Date in accordance with the provisions of the applicable heading
below.
Determination of Interest Rate Per Annum for Prime Rate Notes. If
the Interest Rate Basis specified above is Prime Rate, the interest rate per
annum determined with respect to any Interest Determination Date specified
above shall equal the rate, adjusted by the addition or subtraction of the
Spread, if any, specified above, and/or by multiplication by the Spread
Multiplier, if any, specified above, and calculated by the Calculation Agent
specified above to one hundred-thousandth of a percentage point, rounded up,
set forth for the relevant Prime Rate Interest Determination Date in
"Statistical Release H.15(519), Selected Interest Rates", or any successor
publication of the Board of Governors of the Federal Reserve System ("Release
H.15(519)") under the heading "Bank Prime Loan". In the event that such rate
is not published prior to 9:00 A.M., New York City time, on the relevant
Interest Calculation Date, then the Prime Rate with respect to such Interest
Reset Date will be the arithmetic mean (adjusted or multiplied and calculated
as described above) of the rates of interest publicly announced by each bank
that appears on the display designated as page "NYMF" on the Reuters Monitor
Money Rates Service (or such other page as may replace the NYMF page on that
service for the purpose of displaying prime rates or base lending rates of
major United States banks) ("Reuters Screen NYMF Page") as such bank's prime
rate or base lending rate as in effect for such Prime Rate Interest
Determination Date as quoted on the Reuters Screen NYMF Page on such Prime
Rate Interest Determination Date. If fewer than four such rates appear on the
Reuters Screen NYMF Page on such Prime Rate Interest Determination Date, the
Prime Rate with respect to such Interest Reset Date will be the arithmetic
mean (adjusted or multiplied and calculated as described above) of the prime
rates or base lending rates (quoted on the basis of the actual number of days
in the year divided by a 360-day year) as of the close of business on such
Prime Rate Interest Determination Date by three major banks in The City of New
York selected by the Calculation Agent; provided, however, that if fewer than
three banks selected as aforesaid by the Calculation Agent are quoted as
mentioned in this sentence, the Prime Rate with respect to such Interest Reset
Date will be the Prime Rate in effect on such Prime Rate Interest Determination
Date.
Determination of Interest Rate Per Annum for LIBOR Notes. If the
Interest Rate Basis specified above is LIBOR, the interest rate per annum
determined with respect to any Interest Determination Date specified above
shall equal either (a) the arithmetic mean (as calculated by the Calculation
Agent specified above to one hundred-thousandth of a percentage point, rounded
up) of offered rates for deposits of not less than U.S. $1,000,000 having the
specified Index Maturity, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, which appear on
the Reuters Screen LIBO Page (as defined herein) as of 11:00 A.M., London
time, on such Interest Determination Date, adjusted by the addition or
subtraction of the Spread, if any, specified above, and/or by multiplication
by the Spread Multiplier, if any, specified above or (b) the rate for deposits
in U.S. dollars having the specified Index Maturity commencing on the second
London Business Day immediately following such LIBOR Interest Determination
Date, which appears on the Telerate Page 3750 (as defined below) as of 11:00
a.m., London time, on that LIBOR Interest Determination Date; provided,
however, that if fewer than two such offered rates so appear on the Reuters
Screen LIBO Page, the Calculation Agent shall request the principal London
office of each of four major banks in the London interbank market selected by
the Calculation Agent to provide a quotation of the rate at which such bank
offered to prime banks in the London interbank market at approximately 11:00
A.M., London time, on such Interest Determination Date, deposits in U.S.
dollars having the specified Index Maturity and in a principal amount not less
than U.S. $1,000,000 and equal to an amount that is representative for a
single transaction in such market at such time, and the interest rate per annum
hereon shall equal the arithmetic mean (adjusted or multiplied and calculated
as described above) of (a) such quotations, if at least two quotations are
provided, or (b), if fewer than two such quotations are provided, the rates
quoted at approximately 11:00 A.M., New York City time on such Interest
Determination Date by three major banks in The City of New York selected by
the Calculation Agent for loans in U.S. dollars to leading European banks
having the specified Index Maturity and in a principal amount that is not less
than U.S. $1,000,000 and is representative for a single transaction in such
market at such time, in either case, adjusted or multiplied and calculated as
described above; provided, however, that if not all of the three banks
selected by the Calculation Agent pursuant to clause (b) above are quoting as
described above, the interest rate per annum hereon with respect to such
Interest Determination Date shall be the LIBOR in effect hereon on such
Interest Determination Date. "Reuters Screen LIBO Page" shall mean the
display designated as page "LIBO" on the Reuters Monitor Money Rates Service
(or such other page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of major banks).
"Telerate Page 3750" shall mean the display designated as Page "3750" on the
Telerate Service (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits.
Determination of Interest Rate Per Annum for Treasury Rate Notes. If
the Interest Rate Basis specified above is Treasury Rate, the interest rate
per annum determined with respect to any Interest Determination Date specified
above shall equal the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified
above as published in Release H.15(519), under the heading "U.S. Government
Securities/Treasury bills/Auction Average (Investment)" on such Interest
Determination Date or, if not so published by 9:00 A.M., New York City time,
on the Interest Calculation Date (as specified above) pertaining to such
Interest Determination Date, the auction average rate for the aforementioned
auction for such Interest Determination Date (expressed as a bond equivalent,
calculated to one hundred-thousandth of a percentage point, rounded up, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) for such auction as otherwise announced by the United States Department
of the Treasury, in either case, adjusted by the addition or subtraction of
the Spread, if any, specified above, and/or by multiplication by the Spread
Multiplier, if any, specified above. In the event that the results of such
auction of Treasury bills having the specified Index Maturity are not
published or reported as provided above by 3:00 P.M., New York City time, on
such Treasury Interest Calculation Date, or if no such auction is held by the
applicable Interest Determination Date, then the interest rate per annum with
respect to such Interest Calculation Date shall be the rate set forth in
Release H.15(519) for the specified Index Maturity under the heading "U.S.
Government Securities/Treasury Bills/Secondary Market[s]." In the event such
rate is not so published by 3:00 P.M. New York City time, on the relevant
Interest Calculation Date, then the interest rate per annum hereon shall be
calculated by the Calculation Agent and shall be the yield to maturity
(expressed as a bond equivalent, calculated to one hundred-thousandth of a
percentage point, without rounding, on the basis of a year of 365 or 366 days,
as applicable, and applied on a daily basis) of the arithmetic mean (adjusted
or multiplied and calculated as described above) of the secondary market bid
rates, as of approximately 3:30 P.M., New York City time, on such Interest
Determination Date, of three leading primary United States government
securities dealers in The City of New York selected by the Calculation Agent
for the issue of Treasury bills with a remaining maturity closest to the
specified Index Maturity, adjusted or multiplied and calculated as described
above; provided, however, that if fewer than three dealers selected as
aforesaid by the Calculation Agent are quoting as described in this sentence,
the interest rate per annum hereon with respect to such Interest Determination
Date shall be the Treasury Rate in effect hereon on such Interest
Determination Date.
Determination of Interest Rate Per Annum for Commercial Paper Rate
Notes. If the Interest Rate Basis specified above is Commercial Paper Rate,
the Interest Rate per annum determined with respect to any Interest
Determination Date specified above shall equal (a) the Money Market Yield (as
defined herein) of the per annum rate (quoted on a bank discount basis) on
such Interest Determination Date for commercial paper having the Index
Maturity specified above, (i) as such rate is published in Release H.15(519),
under the heading "Commercial Paper," or (ii) if such rate is not published
[at or] prior to 9:00 A.M., New York City time, on the Interest Calculation
Date (as specified above) pertaining to such Interest Determination Date, as
published by the Federal Reserve Bank of New York in its daily statistical
release, "Composite 3:30 P.M. Quotations for U.S. Government Securities", or
any successor publication published by the Federal Reserve Bank of New York
("Composite Quotations"), under the heading "Commercial Paper", or (b) if by
3:00 P.M., New York City time, on such Interest Calculation Date, such rate is
not yet published in either of such publications, the Commercial Paper Rate
with respect to such Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean
(calculated to one hundred-thousandth of a percentage point, rounded up) of the
offered per annum rates, as of 11:00 A.M., New York City time, on such
Interest Determination Date, of three leading dealers of commercial paper in
The City of New York selected by the Calculation Agent for commercial paper
having the specified Index Maturity placed for industrial issuers whose bond
rating is "AA," or the equivalent, from a nationally recognized rating agency,
in each of the above cases adjusted by the addition or subtraction of the
Spread, if any, specified above, and/or by multiplication by the Spread
Multiplier, if any, specified above; provided, however, that if fewer than
three such dealers are quoting as described above, the interest rate per annum
hereon with respect to such Interest Determination Date shall be the
Commercial Paper Rate in effect hereon on such Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
360 x D
Money Market Yield = 100 x _______________
360 - (D x M)
where "D" refers to the per annum rate for commercial paper quoted on a bank
discount basis and expressed as a decimal calculated to seven decimal places,
without rounding; and "M" refers to the actual number of days in the period
for which interest is being calculated.
Determination of Interest Rate Per Annum for CD Rate Notes. If the
Interest Rate Basis specified above is CD Rate, the Interest Rate per annum
determined with respect to any Interest Determination Date specified above
shall equal the rate, adjusted by the addition or subtraction of the Spread,
if any, specified above, and/or by multiplication by the Spread Multiplier, if
any, specified above and calculated to one hundred-thousandth of a percentage
point, rounded up, for the relevant CD Interest Determination Date for
negotiable certificates of deposit having the specified Index Maturity as
published in Release H.15(519) under the heading "CDs (Secondary Market)". In
the event that such rate is not published prior to 9:00 A.M., New York City
time, on the relevant Interest Calculation Date, then the CD Rate with respect
to such Interest Reset Date shall be the rate (adjusted or multiplied and
calculated as described above) on such CD Rate Interest Determination Date for
negotiable certificates of deposit having the specified Index Maturity as
published in Composite Quotations under the heading "Certificates of Deposit".
If by 3:00 P.M., New York City time, on such Interest Calculation Date such
rate is not published in either Release H.15(519) or Composite Quotations, the
CD Rate with respect to such Interest Reset Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean (adjusted or multiplied and
calculated as described above) of the secondary market offered rates, as of
10:00 A.M., New York City time, on such CD Rate Interest Determination Date,
of three leading nonbank dealers of negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money market banks
with a remaining maturity closest to the specified Index Maturity in a
denomination of U.S. $5,000,000; provided, however, that, if fewer than three
dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the CD Rate with respect to such Interest Reset
Rate will be the CD Rate in effect on such CD Rate Interest Determination Date.
Determination of Interest Rate Per Annum for Federal Funds Rate
Notes. If the Interest Rate Basis specified above is Federal Funds Rate, the
Interest Rate per annum determined with respect to any Interest Determination
Date specified above shall equal the rate, adjusted by the addition or
subtraction of the Spread, if any, specified above, and/or by multiplication
by the Spread Multiplier, if any, specified above and calculated to one
hundred-thousandth of a percentage point, rounded up, on the relevant Federal
Funds Interest Determination Date for Federal Funds as published in Release
H.15(519) under the heading "Federal Funds (Effective)". In the event that
such rate is not published prior to 9:00 A.M., New York City time, on the
relevant Interest Calculation Date, then the Federal Funds Rate with respect
to such Interest Reset Date will be the rate (adjusted or multiplied and
calculated as described above) on such Federal Funds Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If by 3:00 P.M., New York City time, on such Interest
Calculation Date such rate is not published in either Release H.15(519) or
Composite Quotations, the Federal Funds Rate with respect to such Interest
Reset Date shall be calculated by the Calculation Agent and shall be the
arithmetic mean (adjusted or multiplied and calculated as described above) of
the rates, as of 9:00 A.M., New York City time, on such Federal Funds Interest
Determination Date, for the last transaction in overnight Federal Funds
arranged by three leading brokers of Federal Funds transactions in The City of
New York selected by the Calculation Agent; provided, however, that if fewer
than three brokers selected as aforesaid by the Calculation Agent are quoting
as mentioned in this sentence, the Federal Funds Rate with respect to such
Interest Reset Date will be the Federal Funds Rate in effect on such Federal
Funds Interest Determination Date.
Notwithstanding the foregoing, the interest rate per annum hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified above. The Calculation Agent shall
calculate the interest rate hereon in accordance with the foregoing on or
before each Interest Calculation Date.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law of general application.
At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and, if
different, the interest rate which will become effective as a result of a
determination made on the most recent Interest Determination Date with respect
to this Note.
Interest payments hereon will include interest accrued to but
excluding the applicable Interest Payment Date; provided, however, that if the
rate at which interest on this Note is payable shall be adjusted daily or
weekly as specified above under "Interest Rate Reset Period" and as determined
in accordance with the provisions hereof, interest payable on any Interest
Payment Date, other than interest payable on any date on which principal
hereof is payable, will include interest accrued to and including the Record
Date next preceding such Interest Payment Date. Accrued interest hereon from
the Original Issue Date or from the last date to which interest hereon has
been paid, as the case may be, shall be an amount calculated by multiplying
the face amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factors calculated for each
day from the Original Issue Date or from the last date to which interest shall
have been paid or duly provided for, as the case may be, up to but not
including the date for which accrued interest is being calculated. The
interest factor (expressed as a decimal calculated to seven decimal places,
without rounding) for each such date shall be computed by dividing the
interest rate per annum (expressed as a decimal calculated to seven decimal
places, without rounding) applicable to such date by 360 if the Interest Rate
Basis specified above is Prime Rate, LIBOR, Commercial Paper Rate, CD Rate or
Federal Funds Rate or by the actual number of days in the year if the Interest
Rate Basis specified above is Treasury Rate.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than 51% in aggregate
principal amount of the Securities at the time Outstanding (as defined in the
Indenture) of all series to be affected (voting as one class), evidenced as in
the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or modifying in any manner
the rights of the Holders of the Securities of each series; provided, however,
that no such supplemental indenture shall (i) extend the final maturity of any
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or extend the time of payment of any interest thereon, or (ii)
reduce the aforesaid percentage of Securities, the Holders of which are
required to consent to any such supplemental indenture, without the consent of
the Holder of each Security affected. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Securities of any series, prior to any declaration accelerating the maturity
of such Securities, the Holders of a majority in aggregate principal amount
Outstanding of the Securities of such series (or, in the case of certain
defaults or Events of Default, all or certain series of the Securities) may on
behalf of the Holders of all of the Securities of such series (or all or
certain series of the Securities, as the case may be) waive any such past
default or Event of Default and its consequences. The preceding sentence
shall not, however, apply to a default in the payment of the principal of or
premium, in any, or interest on any of the Securities. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of this Security and any Securities which may be
issued upon the registration of transfer thereof or in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Security or such other Securities.
If so provided above under the heading "Redeemable on or after (at
option of the Company)", this Note may be redeemed by the Company on and after
the date so indicated. On and after the date, if any, from which this Note
may be redeemed, this Note may be redeemed in whole or in part, at the option
of the Company, at a redemption price equal to the product of the principal
amount of this Note to be redeemed multiplied by the Redemption Percentage.
The Redemption Percentage shall initially equal the Initial Redemption
Percentage specified above, and shall decline at each anniversary of the
initial date that this Note is redeemable by the amount of the Annual
Redemption Percentage Reduction specified above, until the Redemption
Percentage is equal to 100%.
If so provided above, this Note will be repayable in whole or in part
in increments of $1,000, provided that the remaining principal amount of any
Note surrendered for partial repayment shall be at least $100,000, on any
Business Day on or after the "Initial Date on Which the Note is Repayable at
the Option of the Holder" (as stated above), at the option of the Holder, at
the repayment amount specified above, plus accrued interest, if any, to the
repayment date. In order for the exercise of the option to be effective and
the Notes to be repaid, the Company must receive at the applicable address of
the Paying Agent set forth below or at such other place or places of which the
Company shall from time to time notify the Holder of the within Note, on or
before the fifteenth, but not earlier than the twenty-fifth day, or, if such
day is not a Business Day, the next succeeding Business Day, prior to the
repayment date, either (i) this Note, with the form below entitled "Option to
Elect Repayment" duly completed, or (ii) a telegram, telex, facsimile
transmission, or letter from a member of a national securities exchange or the
National Association of Securities Dealers, Inc. or a commercial bank or a
trust company in the United States of America setting forth (a) the name,
address and telephone number of the Holder of this Note, (b) the principal
amount of this Note and the amount of this Note to be repaid, (c) a statement
that the option to elect repayment is being exercised thereby, and (d) a
guarantee stating that the Company will receive this Note, with the form below
entitled "Option to Elect Repayment" duly completed, not later than 5 Business
Days after the date of such telegram, telex, facsimile transmission or letter
(and this Note and form duly completed are received by the Company by such
fifth Business Day). Any such election shall be irrevocable. The addresses
to which such deliveries are to be made is [
], Attention: [ ] (or at such
other places as the Company shall notify the Holders of the Notes). All
questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
The Notes are issuable in fully registered global or definitive form
without coupons in denominations of $100,000 and integral multiples of $1,000
in excess thereof. Upon due presentment for registration of transfer of this
Note at the office or agency of the Company in the Borough of Manhattan, The
City of New York, a new Note or Notes will be issued to the transferee in
exchange therefor, subject to the limitations provided in the Indenture and to
the limitations described below if applicable, without charge except for any
tax or other governmental charge imposed in connection therewith.
If this Note is a Global Note (as specified above), this Note is
exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive
Notes in registered form or (z) an Event of Default with respect to the Notes
represented hereby has occurred and is continuing. If this Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Notes in registered form, bearing interest at the same rate or
pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Stated Maturity and other terms and of differing
denominations aggregating a like amount.
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 in the manner, at the respective times,
at the rate and in the coin or currency herein prescribed.
The Company, the Trustee and any paying agent and any authorized
agent of the Company, the Trustee and any paying agent may deem and treat the
registered Holder hereof as the absolute owner of this Note (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment of, or on account
of, the principal hereof and premium, if any, and subject to the provisions on
the face hereof, interest hereon and for all other purposes, and neither the
Company nor the Trustee nor any paying agent nor any authorized agent of the
Company, the Trustee or any paying agent shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums paid, effectually satisfy and
discharge liability for moneys payable on this Note.
No recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any indenture supplemental thereto or in any
Note, or because of the creation of any indebtedness evidenced thereby, shall
be had against any incorporator, stockholder, officer or director, as such, of
the Company or of any successor corporation, either directly or through the
Company or any successor corporation, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any
legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance hereof as part of the consideration for
the issue hereof.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
_________________________
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHT
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at
____________________________________________________________
____________________________________________________________
(please print or typewrite name and address of the undersigned).
For this Note to be repaid the Company must receive at the applicable
address of the Paying Agent set forth above or at such other place or places
of which the Company shall from time to time notify the holder of the within
Note on or before the fifteenth, but not earlier than the twenty-fifth, day,
or, if such day is not a Business Day, the next succeeding Business Day, prior
to the repayment date, (i) this Note, with this "Option to Elect Repayment"
form duly completed, or (ii) a telegram, telex, facsimile transmission, or
letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust
company in the United States of America setting forth (a) the name, address
and telephone number of the holder of the Note, (b) the principal amount of
the Note and the amount of the Note to be repaid, (c) a statement that the
option to elect repayment is being exercised thereby, and (d) a guarantee
stating that the Note to be repaid with the form entitled "Option to Elect
Repayment" on the addendum to the Note duly completed will be received by the
Company not later than 5 Business Days after the date of such telegram, telex,
facsimile transmission or letter (and such Note and form duly completed are
received by the Company by such fifth Business Day).
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000) which the Holder elects to have repaid: __________________________;
and specify the denomination or denominations (which shall be $100,000 or an
integral multiple of $1,000 in excess thereof) of the Note or Notes to be
issued to the Holder for the portion of the within Note not being repaid (in
the absence of any specification, one such Note will be issued for the portion
not being repaid): _______________________.
Date: ______________________ _____________________________
Notice: The signature to this
Option to Elect Repayment must
correspond with the name as
written upon page 2 of the Note
in every particular without
alteration or enlargement or any
other change whatsoever.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM --as tenants in common UNIF GIFT MIN ACT--______CUSTODIAN_______
TEN ENT --as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with rightUnder Uniform Gifts to Minors Act
of survivorship and not as
tenants in common _________________________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s)
unto
[Please Insert Social Security or
Other Identifying Number of Assignee]
_________________________________
/________________________________/____________________________________________
[PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE]
______________________________________________________________________________
______________________________________________________________________________
the within Note of MURPHY OIL CORPORATION and all rights thereunder, hereby
irrevocably constituting and appointing such person attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
Dated: _______________________ _________________________________
_________________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatever.
EXHIBIT 5
August 19, 1994
Murphy Oil Corporation
200 Peach Street
El Dorado, Arkansas 71731
Dear Sirs:
We are acting as special counsel for Murphy Oil Corporation, a
Delaware corporation (the "Company"), in connection with its Registration
Statement on Form S-3 (the "Registration Statement") relating to the
registration under the Securities Act of 1933, as amended (the "Act"), of
up to $250,000,000 aggregate principal amount of debt securities
("Securities") to be issued pursuant to an indenture to be dated as of
__________, 1994 (the "Indenture") between the Company and Chemical Bank,
as Trustee (the "Trustee").
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments as we have deemed
necessary in connection with the opinion set forth below.
Based on the foregoing, we are of the opinion that the execution of
the Indenture has been duly authorized by the Board of Directors of the
Company. When the Indenture has been duly executed and delivered pursuant to
such authorization, the Registration Statement has become effective under the
Act and the Securities have been duly executed by the Company, authenticated
by the Trustee and delivered against payment therefor, the Securities will be
valid and binding obligations of the Company.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement and to the reference to our firm under the caption
"Legal Opinions" in the Prospectus contained therein.
Very truly yours,
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
Murphy Oil Corporation:
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
Our reports refer to changes in the methods of accounting for income taxes
and postretirement benefits other than pensions in 1993.
KPMG PEAT MARWICK
Shreveport, Louisiana
August 19, 1994
EXHIBIT 25
______________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
_________________________
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
___________________________________________
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
________________________________________
CHEMICAL BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
_____________________________________________
Murphy Oil Corporation
(Exact name of obligor as specified in its charter)
Delaware 71-0361522
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
200 Peach Street
P. O. Box 7000
El Dorado, Arkansas 71731-7000
(Address of principal executive offices) (Zip Code)
___________________________________________
Debt Securities
(Title of the indenture securities)
______________________________________________________________________________
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject. New York State Banking Department, State
House, Albany, New York 12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551 and Federal Reserve Bank of New York, District No. 2, 33
Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of
Amendment dated February 17, 1969, August 31, 1977, December 31, 1980,
September 9, 1982, February 28, 1985 and December 2, 1991 (see Exhibit 1 to
Form T-1 filed in connection with Registration Statement No. 33-50010,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to
Commence Business (see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by reference).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to
Form T-1 filed in connection with Registration Statement No. 33-46892,
which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the
Act (see Exhibit 6 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference).
7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its supervising or
examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chemical Bank, a corporation organized and existing under the laws
of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all
in the City of New York and State of New York, on the 16th day of August,
1994.
CHEMICAL BANK
By /s/ Anne G. Brenner
Anne G. Brenner
Assistant Vice President
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
Chemical Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business March 31, 1994, published in
accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ................................. $ 5,741
Interest-bearing balances ......................... 3,768
Securities ................................................
Held to maturity securities................................ 7,503
Available for sale securities.............................. 15,662
Federal Funds sold and securities purchased under
agreements to resell in domestic offices of the
bank and of its Edge and Agreement subsidiaries,
and in IBF's:
Federal funds sold ................................ 2,514
Securities purchased under agreements to resell ... 995
Loans and lease financing receivables:
Loans and leases, net of unearned income $61,140
Less: Allowance for loan and lease losses.. 2,315
Less: Allocated transfer risk reserve ..... 115
Loans and leases, net of unearned income, -------
allowance, and reserve ............................ 58,710
Assets held in trading accounts ........................... 26,249
Premises and fixed assets (including capitalized
leases)............................................ 1,310
Other real estate owned ................................... 642
Investments in unconsolidated subsidiaries and
associated companies............................... 120
Customer's liability to this bank on acceptance
outstanding ....................................... 1,093
Intangible assets ......................................... 549
Other assets .............................................. 7,807
--------
TOTAL ASSETS .............................................. $132,663
========
LIABILITIES
Deposits
In domestic offices ................................ $49,180
Noninterest-bearing .........................$16,896
Interest-bearing ............................ 32,284
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .......................................... 25,612
Noninterest-bearing .........................$ 128
Interest-bearing ............................ 25,484
-------
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of the
bank and of its Edge and Agreement subsidiaries, and
in IBF's Federal funds purchased ................... 10,710
Securities sold under agreements to repurchase ..... 1,789
Demand notes issued to the U.S. Treasury ................... 1,493
Trading liabilities ........................................ 14,745
Other Borrowed money:
with original maturity of one year or less ......... 6,331
with original maturity of more than one year ....... 1,031
Mortgage indebtedness and obligations under capitalized
leases ............................................. 21
Bank's liability on acceptances executed and outstanding 1,096
Subordinated notes and debentures .......................... 3,500
Other liabilities .......................................... 9,562
TOTAL LIABILITIES .......................................... 125,070
--------
EQUITY CAPITAL
Common stock ............................................... 620
Surplus .................................................... 4,501
Undivided profits and capital reserves ..................... 2,684
Less: Net unrealized loss on marketable equity
securities....................................... (210)
Cumulative foreign currency translation adjustments ........ (2)
TOTAL EQUITY CAPITAL ....................................... 7,593
--------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED
STOCK AND EQUITY CAPITAL .......................... $132,663
========
I, Joseph L. Sclafani, S.V.P. & Controller of the above-named bank, do
hereby declare that this Report of Condition is true and correct to the
best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this statement
of resources and liabilities. We declare that it has been examined by us,
and to the best of our knowledge and belief has been prepared in
conformance with the instructions and is true and correct.
WALTER V. SHIPLEY )
EDWARD D. MILLER )DIRECTORS
WILLIAM B. HARRISON )