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As filed with the Securities and Exchange Commission on September 30, 1994
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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)
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)
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
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]
The Registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
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PROSPECTUS
$250,000,000
Murphy Oil Corporation
Debt Securities
Murphy Oil Corporation (the "Company"), a Delaware corporation, may
offer from time to time up to $250,000,000 aggregate principal amount of its
senior debt securities (the "Debt Securities") on terms to be determined by
market conditions at the time of sale. The Debt Securities may be offered as
separate series in amounts, at prices and on terms to be determined at the
time of sale and to be set forth in supplements to this Prospectus. The Debt
Securities may be sold to underwriters for public offering pursuant to terms
of offering fixed at the time of sale. In addition, Debt Securities may be
sold by the Company directly or through agents or dealers.
The specific aggregate principal amount, maturity, rate and time of
payment of interest, purchase price, any terms for redemption or other special
terms and the names of the underwriters, agents or dealers, if any, in
connection with the sale of Debt Securities in respect of which this
Prospectus is being delivered ("Offered Debt Securities") are set forth in the
accompanying Prospectus Supplement ("Prospectus Supplement"), together with
the terms of offering of the Offered Debt Securities. Unless otherwise set
forth in the Prospectus Supplement, (i) the underwriters, if any, may include
Smith Barney Inc., J.P. Morgan Securities Inc. and NatWest Capital Markets
Limited, acting alone or as representatives of a group of underwriters, and
(ii) the agents or dealers, if any, may include Smith Barney Inc., J.P. Morgan
Securities Inc. and National Westminster Bank Plc, New York Branch.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMIS- SION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Smith Barney Inc.
J.P. Morgan Securities Inc.
NatWest Markets
September 30, 1994
No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in
this Prospectus and, if given or made, such information or representations
must not be relied upon as having been authorized by the Company or any
underwriter, agent or dealer. This Prospectus does not constitute an offer to
sell or a solicitation of an offer to buy Debt Securities by anyone in any
jurisdiction in which such offer or solicitation is not authorized or in which
the person making such offer or solicitation is not qualified to do so or to
any person to whom it is unlawful to make such offer or solicitation. Neither
the delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that information herein is correct as of
any time subsequent to the date hereof.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICES OF THE DEBT
SECURITIES OR OTHER SECURITIES OF THE COMPANY AT LEVELS ABOVE THOSE WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH STABILIZING, IF COMMENCED,
MAY BE DISCONTINUED AT ANY TIME.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission") relating to its
business, financial statements and other matters. Such reports, proxy
statements and other information filed by the Company may be inspected and
copied at the Public Reference Section maintained by the Commission at Room
1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and its
Regional Offices located in the Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and at 7 World Trade Center, 13th
Floor, New York, New York 10048. Copies of such material may be obtained from
the Commission's Public Reference Section, 450 Fifth Street, N.W., Washington,
D.C. 20549 at prescribed rates. These reports, proxy statements and other
information may also be inspected at the offices of the New York Stock
Exchange, Inc. at 20 Broad Street, New York, New York 10005.
This Prospectus constitutes a part of a Registration Statement filed by
the Company with the Commission under the Securities Act of 1933, as amended
(the "Securities Act"). This Prospectus omits certain of the information
contained in the Registration Statement, and reference is hereby made to the
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Debt Securities offered
hereby. Any statements contained herein concerning the provisions of any
documents are not necessarily complete, and, in each instance, reference is
made to such copy filed as an exhibit to the Registration Statement or
otherwise filed with the Commission. Each such statement is qualified in its
entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company filed with the Securities and
Exchange Commission are incorporated herein by reference:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1993; and
(b) Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994
and June 30, 1994.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the termination of the offering of the Debt Securities
offered hereby shall be deemed to be incorporated by reference in this
Prospectus and to be part hereof from the date of filing such documents. Any
statements contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein, in the accompanying Prospectus Supplement or in
any subsequently filed document, which also is incorporated by reference
herein, modifies or supersedes such statement. Any statement so modified or
superseded shall not be deemed to constitute a part hereof, except as so
modified or superseded.
THE COMPANY WILL PROVIDE, WITHOUT CHARGE, TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN OR ORAL
REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE DOCUMENTS WHICH HAVE
BEEN OR MAY BE INCORPORATED BY REFERENCE IN THIS PROSPECTUS (OTHER THAN
EXHIBITS TO SUCH DOCUMENTS). SUCH REQUEST SHOULD BE DIRECTED TO: CORPORATE
SECRETARY, MURPHY OIL CORPORATION, P. O. BOX 7000, EL DORADO, ARKANSAS
71731-7000, TELEPHONE NUMBER (501) 862-6411.
THE COMPANY
Murphy Oil Corporation was originally incorporated in Louisiana in 1950
as Murphy Corporation, reincorporated in Delaware in 1964, at which time it
adopted the name Murphy Oil Corporation, and reorganized in 1983 to operate
solely as a holding company of its various businesses.
The Company is a natural resources company that conducts various business
activities in the United States and internationally through wholly owned
subsidiaries. During 1993, Murphy was engaged in onshore and/or offshore oil
and gas exploration activities in the United States, Canada, the U.K. North
Sea, Ecuador, Peru, Ireland and China. Crude oil and natural gas liquids are
produced in the United States, Canada, the U.K. North Sea, Ecuador, Gabon and
Spain. Natural gas is sold in the United States, Canada, the U.K. North Sea
and Spain.
Murphy owns and operates two refineries in the United States and has an
effective 30% interest in a refinery in the United Kingdom. Petroleum
products are sold at wholesale and retail in the United States, Western Europe
and Canada. Murphy also purchases, transports (via owned and operated
pipelines and otherwise) and resells crude oil in Canada.
In addition to its oil and gas operations, Murphy is engaged in farming,
timber and land management, and lumber manufacturing operations, primarily in
Arkansas and North Louisiana, and in real estate development in Little Rock,
Arkansas.
The Company's principal executive offices are located at 200 Peach
Street, El Dorado, Arkansas 71731-7000, telephone number (501) 862-6411. Its
capital stock is listed on the New York Stock Exchange and on The Toronto
Stock Exchange under the symbol MUR. Unless otherwise indicated or the
context otherwise requires, all references in this Prospectus to the Company
include Murphy Oil Corporation and its subsidiaries.
USE OF PROCEEDS
Except as otherwise described in the Prospectus Supplement, the net
proceeds from the sale of the Debt Securities will be added to the general
funds of the Company to be used for capital expenditures, to meet working
capital requirements and for other general corporate purposes, including the
repayment of borrowings. The Company may also use some or all of such net
proceeds to finance the acquisition of direct or indirect interests in oil and
gas producing properties.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the Company's ratio of earnings to fixed
charges for each of the past five years and the six months ended June 30, 1994
and 1993.(1)
Six Months
Ended June 30, Year Ended December 31,
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1994 1993 1993 1992 1991 1990 1989
---- ---- ---- ---- ---- ---- ----
8.31 9.71 13.56 4.35 1.78 7.24 4.62
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(1) For the purpose of determining the ratio of earnings to fixed charges,
earnings consist of income from continuing operations (adjusted for
undistributed earnings of companies accounted for by the equity method)
before income taxes and minority interest plus fixed charges (adjusted to
exclude capitalized interest). Fixed charges consist of interest and
amortization of debt discount and expense, whether capitalized or
expensed, and that portion of rental expense determined to be
representative of the interest factor.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be unsecured obligations of the Company and
will be issued under an Indenture to be dated as of October 1, 1994 (the
"Indenture") between the Company and Chemical Bank (the "Trustee"), a copy of
which is filed as an exhibit to the Registration Statement. The following
summaries of certain provisions of the Indenture do not purport to be complete
and are subject to, and are qualified in their entirety by reference to, all
the provisions of the Indenture, including the definitions therein of certain
terms. Wherever particular sections or defined terms of the Indenture are
referred to, it is intended that such sections or defined terms shall be
incorporated herein by reference. Under this caption, the term the "Company"
refers solely to Murphy Oil Corporation.
General
The Debt Securities will be unsecured obligations of the Company and will
be issued as registered securities without coupons. The Debt Securities will
rank on a parity with all other unsecured and unsubordinated obligations of
the Company. The Indenture does not limit the amount of Debt Securities which
may be issued thereunder, and provides that the specific terms of any Debt
Securities shall be set forth in, or determined pursuant to, a resolution of
the Board of Directors and/or a supplemental indenture, if any, relating to
such Debt Securities.
The Indenture provides that Debt Securities may be issued from time to
time in one or more series and may be denominated and payable in foreign
currencies or units based on or relating to foreign currencies, including
European Currency Units. Special United States federal income tax
considerations applicable to any Debt Securities so denominated are described
in the relevant Prospectus Supplement.
The specific terms of the Debt Securities in respect of which this
Prospectus is being delivered are set forth in the accompanying Prospectus
Supplement relating thereto, including the following, as applicable: (i) the
title; (ii) any limit on the aggregate principal amount; (iii) the date of
maturity; (iv) the currency or units based on or relating to currencies in
which Debt Securities are denominated and the currency or units in which
principal or interest or both will or may be payable; (v) the interest rate
(or method by which such rate will be determined), if any, and the date from
which interest will accrue; (vi) the date(s) on which interest will be
payable; (vii) the place or places where the principal of and interest on
such Debt Securities will be payable; (viii) provisions relating to
redemption, if any, and the terms and conditions for such redemption; (ix)
the denominations in which the Debt Securities are issuable; (x) additional
or different covenants or Events of Default, if any, with respect to the Debt
Securities in addition to or in lieu of the covenants and Events of Default
specified in the Indenture; (xi) whether and under what circumstances the
Company will pay additional amounts on Debt Securities held by a person who is
not a U.S. person (as defined in the Prospectus Supplement) in respect of any
tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem such Debt Securities rather
than pay such additional amount; and (xii) any other specific terms of the
Debt Securities, including any terms which may be required by or advisable
under United States laws or regulations.
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities (bearing either no interest or bearing interest at the
rate which at the time of issuance is below the prevailing market rate) to be
sold at a discount below their stated principal amount. Any special federal
income tax and other considerations applicable to such Original Issue Discount
Securities are described in the Prospectus Supplement relating thereto.
Debt Securities may be presented for exchange or transfer in the manner,
at the places and subject to the restrictions set forth in the Debt Securities
and the Prospectus Supplement. Such services will be provided without charge,
other than any tax or other governmental charge payable in connection
therewith, but subject to the limitations provided in the Indenture.
Global Securities
The Debt Securities may be issued in the form of one or more fully
registered global Debt Securities (a "Global Security") that will be deposited
with a depositary (a "Depositary") or with a nominee for a Depositary or a
nominee thereof. In such case, one or more Global Securities will be issued
in a denomination or aggregate denominations equal to the portion of the
aggregate principal amount of outstanding Debt Securities to be represented by
such Global Security or Securities. Unless and until it is exchanged in whole
or in part for Debt Securities in definitive form, a Global Security may not
be transferred except as a whole by the Depositary for such Global Security 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 of such Depositary or a nominee of such successor.
The Depositary currently accepts only Debt Securities that are payable in
United States dollars.
The specific terms of the depositary arrangement with respect to any
portion of the Debt Securities to be represented by a Global Security will be
described in the Prospectus Supplement relating to such Debt Securities. The
Company anticipates that the following provisions will apply to all depositary
arrangements.
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary for such Global Security
("participants") or persons that may hold interests through participants.
Upon the issuance of a Global Security, the Depositary for such Global
Security will credit, on its book-entry registration and transfer system, the
participants' accounts with the respective principal amounts of the Debt
Securities represented by such Global Security beneficially owned by such
participants. The accounts to be credited shall be designated by any dealers,
underwriters or agents participating in the distribution of such Debt
Securities. Ownership of beneficial interests in such Global Security will be
shown on, and the transfer of such ownership interests will be effected only
through, records maintained by the Depositary for such Global Security (with
respect to interests of participants) and on the records of participants (with
respect to interests of persons holding through participants). The laws of
some states may require that certain purchasers of securities take physical
delivery of such securities in definitive form. Such limits and such laws may
impair the ability to own, transfer or pledge beneficial interests in Global
Securities.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture. Except as set forth below, owners of beneficial interests in the
Global Security will not be entitled to have the Debt Securities represented
by such Global Security registered in their names, will not receive or be
entitled to receive physical delivery of such Debt Securities in definitive
form and will not be considered the owners or Holders thereof under the
Indenture. Accordingly, each person owning a beneficial interest in a Global
Security must rely on the procedures of the Depositary for such Global
Security and, if such person is not a participant, on the procedures of the
participant through which such person owns its interest, to exercise any
rights of a Holder under the Indenture. The Company understands that under
existing industry practices, if the Company requests any action of Holders or
if an owner of a beneficial interest in a Global Security desires to give or
take any action which a Holder is entitled to give or take under the
Indenture, the Depositary for such Global Security would authorize the
participants holding the relevant beneficial interests to give or take such
action, and such participants would authorize beneficial owners owning through
such participants to give or take such action or would otherwise act upon the
instructions of beneficial owners holding through them.
Principal and interest payments on Debt Securities represented by a
Global Security registered in the name of a Depositary or its nominee will be
made to such Depositary or its nominee, as the case may be, as the registered
owner of such Global Security. None of the Company, the Trustee or any other
agent of the Company or agent of the Trustee will have any responsibility or
liability for any aspect of the records relating to or payments made on
account of beneficial ownership interests in such Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that the Depositary for any Debt Securities
represented by a Global Security, upon receipt of any payment of principal,
premium, if any, or any interest in respect of such Global Security, will
immediately credit participants' accounts with payments in amounts
proportionate to their respective beneficial interests in such Global Security
as shown on the records of such Depositary. The Company also expects that
payments by participants to owners of beneficial interests in such Global
Security held through such participants will be governed by standing customer
instructions and customary practices, as is now the case with securities held
for the accounts of customers in bearer form or registered in "street name,"
and that the distribution of these payments will be the responsibility of such
participants.
If the Depositary for any Debt Securities represented by a Global
Security is at any time unwilling or unable to continue as Depositary or
ceases to be a clearing agency registered under the Exchange Act and a
successor Depositary registered as a clearing agency under the Exchange Act is
not appointed by the Company within 90 days, the Company will issue such Debt
Securities in definitive form in exchange for such Global Security. In
addition, the Company may at any time and in its sole discretion determine not
to have any of the Debt Securities of a series represented by one or more
Global Securities and, in such event, will issue Debt Securities of such
series in definitive form in exchange for all of the Global Security or
Securities representing such Debt Securities. Any Debt Securities issued in
definitive form in exchange for a Global Security will be registered in such
name or names as the Depositary shall instruct the Trustee. It is expected
that such instructions will be based upon directions received by the
Depositary from participants with respect to ownership of beneficial interests
in such Global Security.
Restrictive Covenants
The following restrictions apply to the Debt Securities unless the
Prospectus Supplement relating to particular Offered Debt Securities provides
otherwise.
Limitation on Liens. The Indenture states that the Company will not, nor
will it permit any Restricted Subsidiary (as hereinafter defined) 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 (as
hereinafter defined) 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 Company in
such case will make or cause to be made effective provision, whereby the Debt
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 Company or a Subsidiary, (iv) Mortgages or easements on property
of the Company 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 Company 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
the Indenture, (vii) liens on property or assets of the Company 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 Company 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 Company 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 Company.
Limitation on Sale and Lease-Back Transactions. The Indenture states
that the Company will not, nor will it permit any Restricted Subsidiary to,
enter into any arrangement with any person providing for the leasing by the
Company or a Restricted Subsidiary as lessee of any Principal Property (except
for temporary leases for a term of not more than three years), which property
has been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such person (herein referred to as a "Sale and Lease-Back
Transaction"), unless (i) the Company or such Restricted Subsidiary would be
entitled to incur Debt secured by a Mortgage on the property to be leased
without violation of the provisions described above under "Limitation on
Liens" and without equally and ratably securing the Debt Securities of each
series or (ii) the Company shall, and in any such case the Company 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 Company since the date of the 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 Company during such twelve-month
period and 120-day period.
Certain Definitions. Set forth below is a summary of certain defined
terms used in the Indenture. Reference is made to the Indenture for the full
definition of all such terms and to the definition of other defined terms used
herein.
The term "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 (as defined in the Indenture); 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).
The term "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 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, (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.
The term "Principal Property" means all property and equipment directly
engaged in the exploration, production, refining and transportation activities
of the Company and its Subsidiaries, except any such property and equipment
which the Board of Directors declares is not material to the business of the
Company and its Subsidiaries taken as a whole.
The term "Restricted Subsidiary" means any Subsidiary of the Company that
owns a Principal Property and has Stockholders' Equity that is greater than 2%
of Consolidated Net Tangible Assets of the Company.
The term "Senior Funded Indebtedness" means any Funded Indebtedness which
is also Senior Indebtedness.
The term "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 Company, 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 Company to a Subsidiary of the Company for money
borrowed or advanced from such Subsidiary.
The term "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 Company or by the
Company and one or more Subsidiaries or by one or more Subsidiaries, and (ii)
any limited partnership in which the Company 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 Company or by the Company and one or more Subsidiaries or by one or more
Subsidiaries. The term "subsidiary," when used with respect to any Person
other than the Company, shall have a meaning correlative to the foregoing.
Consolidation, Merger and Sale of Assets
The Indenture provides that the Company will not consolidate with or
merge with or into any other corporation or sell or convey (including by way
of lease) all or substantially all of its assets to any Person unless
permitted by law and unless (1) either the Company shall be the continuing
corporation, or the successor corporation or the Person which acquires by sale
or conveyance substantially all the assets of the Company (if other than the
Company) shall be a corporation or entity 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 Debt
Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of the Indenture to be
performed or observed by the Company, by supplemental indenture satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation or
entity, and (2) the Company or such successor corporation entity, 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.
Unless otherwise indicated in the Prospectus Supplement, certain of the
convenants described above would not necessarily afford holders of the Debt
Securities protection in the event of a highly leveraged transaction involving
the Company, such as a leveraged buyout.
Events of Default; Rights on Default
An "Event of Default" with respect to the Debt Securities of any series
is defined in the Indenture to mean failure to pay interest on the Debt
Securities of such series when due for 30 days; failure to pay principal of
the Debt Securities of such series when due; default in the payment of any
sinking fund installment when due on any of the Debt Securities of such
series; failure on the Company's part to observe any of its other agreements
in the Indenture or the Debt Securities and applicable to the Debt Securities
of such series for a period of 90 days after notice to the Company (given as
described below); default involving the payment of interest, principal,
premium or a sinking fund or redemption payment under any Debt of the Company
in excess of $5,000,000 if either such Debt is then due and payable and demand
has been made or such default results in the acceleration of such Debt which
acceleration is not stayed, rescinded or annulled within ten days after
written notice (provided that the resulting Event of Default under the
Indenture will, in any event, be deemed to have been cured or waived by the
curing or waiving of the default under such other Debt); and certain events of
bankruptcy or reorganization of the Company.
If an Event of Default occurs and is continuing, either the Trustee or
the Holders of not less than 25% of the aggregate principal amount of the Debt
Securities of each series so affected then outstanding may declare the
principal and accrued interest of all the Debt Securities of such series due
and payable immediately by written notice to the Company (and to the Trustee,
if given by the Securityholders). However such declaration and its
consequences may be rescinded and annulled by the Holders of a majority in
aggregate principal amount of the Debt Securities of such series then
outstanding, upon the conditions provided in the Indenture.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default on a series of Debt Securities, give to the Holders of
the Debt Securities of such series written notice of all uncured defaults;
provided that, except in the case of default in the payment of principal of or
interest on any of the Debt Securities of such series, the Trustee may
withhold such notice if in good faith it determines that the withholding of
such notice is in the interest of the Holders of the Debt Securities of such
series.
The Company is required, pursuant to the terms of the Indenture, to
deliver to the Trustee within 120 days after the end of each fiscal year a
certificate of certain of the Company's officers stating whether the signers
know of any default by the Company in performing any of its obligations under
the Indenture (and, if one has occurred, specifying its nature).
In case an Event of Default shall occur and is continuing, the Trustee
will be required to exercise its rights and powers and use the degree of care
and skill of a prudent man in the conduct of his own affairs. Subject to
certain limitations, Holders of a majority in principal amount of the
outstanding Debt Securities of any series may direct the Trustee in its
exercise of any trust or power. Except as specifically provided in the
Indenture, nothing therein relieves the Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct.
No Holder of the Debt Securities of any series will have any right to
pursue any remedy with respect to the Indenture unless such Holder previously
shall have given to the Trustee written notice of a default (and no
inconsistent notice shall be subsequently delivered to the Trustee) and unless
also the Holders of at least 25% of the principal amount of outstanding Debt
Securities of such series shall have made a written request to the Trustee to
pursue the remedy, offering indemnity satisfactory to the Trustee, and the
Trustee does not comply with such request within 60 days after receipt of such
request. The right of each Holder of the Debt Securities of any series to
enforce his rights to receive payment of principal of, or interest on the Debt
Securities held by him shall not be impaired or compromised without his
consent.
Defeasance
Under the terms of the Indenture and the Debt Securities, the Company, at
its option, (a) will be discharged from any and all obligations in respect of
the Debt Securities (except in each case for certain obligations to register
the transfer or exchange of Debt Securities, replace stolen, lost or mutilated
Debt Securities, maintain paying agencies and hold moneys for payment in
trust) or (b) need not comply with the covenants of the Indenture, in each
case, if the Company irrevocably deposits with the Trustee, in trust, money or
(in the case of Debt Securities denominated in currency of the United States)
U.S. Government Obligations (as defined in the Indenture) which through the
payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient to pay the principal of and
interest on the Debt Securities on the dates such payments are due in
accordance with the terms of the Debt Securities.
To exercise the option under clause (a) and (b) above, the Company is
required to deliver to the Trustee an opinion of counsel to the effect that
Holders of the Debt Securities will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance.
In the event the Company exercises its option under clause (a) or (b) of
the second preceding paragraph and the Debt Securities are declared due and
payable because of the occurrence of any Event of Default, the amount of money
and U.S. Government Obligations on deposit with the Trustee will be
sufficient to pay amounts due on the Debt Securities at the time of their
stated maturity but may not be sufficient to pay amounts due on the Debt
Securities at the time of the acceleration resulting from such Event of
Default. However, the Company shall remain liable for such payments.
Modification of the Indenture
With certain exceptions, the Company's obligations and the rights of the
Holders of Debt Securities may be modified only with the consent of the
Company, the Trustee and the Holders of not less than a majority in principal
amount of the outstanding Debt Securities of all series affected by the
amendment voting as one class; provided, however, that no extension of the
maturity of any Debt Securities, no reduction of the interest rate or
extension of time for the payment of interest, no reduction in the principal
amount or any amount payable on redemption, repayment or acceleration of
maturity, no impairment of the right of repayment at the option of the Holder,
if applicable, or the right to institute suit for repayment and no reduction
of the percentage required for modification of the Indenture will be effective
without the consent of each Holder so affected. A default on any series of
the Debt Securities, except as stated above, may be waived by the Holders of a
majority of the principal amount of the Debt Securities of such series.
Trustee
Chemical Bank acts as a depositary of funds of, extends lines of credit
to, and performs other services for the Company and its affiliates in the
normal course of its business.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters or
dealers and also may sell Debt Securities directly to dealers or other
purchasers or through agents. Any such dealer or agent, in addition to any
underwriter, may be deemed to be an underwriter within the meaning of the
Securities Act. The terms of the offering of the Debt Securities with respect
to which this Prospectus is being delivered are set forth in the accompanying
Prospectus Supplement, including the name or names of any underwriters,
dealers or agents, the purchase price of such Debt Securities and the proceeds
to the Company from such sale, any underwriting discounts and other items
constituting underwriters' compensation, the initial public offering price and
any discounts or concessions which may be allowed or reallowed or paid to
dealers and any securities exchanges on which the Debt Securities may be
listed.
If underwriters are used in the sale, the Debt Securities will be
acquired by the underwriters for their own account and may be sold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of
sale. The Debt Securities may be offered to the public either through
underwriting syndicates represented by managing underwriters or directly by
one or more underwriters acting alone. Unless otherwise set forth in the
Prospectus Supplement, such underwriters may include Smith Barney Inc., J.P.
Morgan Securities Inc. and NatWest Capital Markets Limited. Unless otherwise
set forth in the Prospectus Supplement, the obligations of the underwriters to
purchase the Debt Securities described in the accompanying Prospectus
Supplement will be subject to certain conditions precedent and the
underwriters will be obligated to purchase all such Debt Securities if any are
so purchased by them. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time
to time.
The Debt Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Unless otherwise set forth in the
Prospectus Supplement, such agents may include Smith Barney Inc., J.P. Morgan
Securities Inc. and National Westminster Bank Plc, New York Branch. Any agents
involved in the offer or sale of the Debt Securities in respect of which this
Prospectus is being delivered are named, and any commissions payable by the
Company to such agents are set forth in the accompanying Prospectus
Supplement. Unless otherwise indicated in the Prospectus Supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
If dealers are utilized in the sale of any Debt Securities, the Company
will sell the Debt Securities to the dealers as principals. Any dealer may
resell the Debt Securities to the public at varying prices to be determined by
the dealer at the time of resale. Unless otherwise set forth in the Prospectus
Supplement, such dealers may include Smith Barney Inc., J.P. Morgan Securities
Inc. and National Westminster Bank Plc, New York Branch. The names of any
dealers and the terms of the transaction will be set forth in the Prospectus
Supplement with respect to the Debt Securities being offered thereby.
If so indicated in the Prospectus Supplement, the Company will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase the Debt Securities to which this Prospectus and the
Prospectus Supplement relates from the Company at the public offering price
set forth in the Prospectus Supplement, plus accrued interest, pursuant to
delayed delivery contracts providing for payment and delivery on a specified
date in the future. Such contracts will be subject only to those conditions
set forth in the Prospectus Supplement, and the Prospectus Supplement will set
forth the commission payable for solicitation of such contracts.
Underwriters will not be obligated to make a market in any Debt
Securities. The Company cannot predict the activity of trading in, or
liquidity of, any Debt Securities.
Agents, dealers and underwriters may be entitled under agreements entered
into with the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution by the Company to payments they may be required to make in
respect thereof.
Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services for, the Company and its affiliates in
the ordinary course of business.
LEGAL OPINIONS
The legality of the Debt Securities offered hereby will be passed upon
for the Company by Davis Polk & Wardwell, New York, New York, and certain
legal matters in connection with the Debt Securities will be passed upon for
the underwriters or the agents by Cahill Gordon & Reindel, a partnership
including a professional corporation.
EXPERTS
The consolidated financial statements and related schedules of the
Company as of December 31, 1993 and 1992 and for each of the years in the
three-year period ended December 31, 1993, incorporated by reference herein
and elsewhere in the Registration Statement, have been incorporated by
reference herein and in the Registration Statement in reliance upon the
reports of KPMG Peat Marwick LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The reports of KPMG Peat Marwick LLP
covering the 1993 consolidated financial statements and related schedules
refer to changes in methods of accounting for post-retirement benefits other
than pensions and income taxes.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 16. List of Exhibits and Exhibit Index.
Exhibit
Number Description
_______ ___________
1.1 -- Form of Underwriting Agreement.
1.2 -- Form of Distribution Agreement.
4.1 -- Form of Indenture.
4.2 -- Form of Debt Security.*
4.2a -- Form of fixed rate medium-term note.*
4.2b -- Form of floating rate medium-term note.*
5 -- Opinion of Davis Polk & Wardwell as to legality of securities to
be issued.*
12 -- Computation of ratio of earnings to fixed charges.*
23.1 -- Consent of independent auditors.*
23.2 -- Consent of Davis Polk & Wardwell (included as part of Exhibit
5).*
24 -- Power of Attorney.*
25 -- Statement of Eligibility and Qualification of Trustee on Form T-1
under the Trust Indenture Act of 1939.*
_______________
*Previously filed.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of El Dorado, State of Arkansas, on
September 30, 1994.
MURPHY OIL CORPORATION
By /s/ STEVEN A. COSSE
______________________________
Steven A. Cosse
Vice President and General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed by the following
persons in the capacities indicated below and on the date indicated above.
C.H. MURPHY, JR.* /s/ H. RODES HART*
_____________________________________ _____________________________________
C.H. Murphy, Jr., Chairman and Director H. Rodes Hart, Director
JACK W. MCNUTT* VESTER T. HUGHES, JR.*
_____________________________________ _____________________________________
Jack W. McNutt, President and Chief Vester T. Hughes, Jr., Director
Executive Officer and Director
(Principal Executive Officer) MICHAEL W. MURPHY*
_____________________________________
R. MADISON MURPHY* Michael W. Murphy, Director
_____________________________________
R. Madison Murphy, Executive Vice WILLIAM C. NOLAN, JR.*
President and Chief Financial and _____________________________________
Administrative Officer and Director William C. Nolan, Jr., Director
(Principal Financial Officer)
CAROLINE G. THEUS*
CLAIBORNE P. DEMING* _____________________________________
_____________________________________ Caroline G. Theus, Director
Claiborne P. Deming, Executive Vice
President and Chief Operating LORNE C. WEBSTER*
Officer and Director _____________________________________
Lorne C. Webster, Director
B.R.R. BUTLER*
_____________________________________ RONALD W. HERMAN*
B.R.R. Butler, Director _____________________________________
Ronald W. Herman, Controller
(Principal Accounting Officer)
*By: STEVEN S. COSSE *
_________________________________
(Steven A. Cosse,
Attorney-in-Fact
EXHIBIT INDEX
Exhibit Sequential
No. Description Page No.
_______ ___________ __________
1.1 -- Form of Underwriting Agreement.
1.2 -- Form of Distribution Agreement.
4.1 -- Form of Indenture.
4.2 -- Form of Debt Security.*
4.2a-- Form of fixed rate medium-term note.*
4.2b-- Form of floating rate medium-term note.*
5 -- Opinion of Davis Polk & Wardwell as to legality of
securities to be issued.*
12 -- Computation of ratio of earnings to fixed charges.*
23.1 -- Consent of independent auditors.*
23.2 -- Consent of Davis Polk & Wardwell (included as part of
Exhibit 5).*
24 -- Power of Attorney.*
25 -- Statement of Eligibility and Qualification of Trustee on
Form T-1 under the Trust Indenture Act of 1939.*
____________________
* Previously filed.
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) identified on the table 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 issue and sell to each
Underwriter and, upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions set forth herein, each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Debt
Securities set forth below opposite its name (or such principal amount of Debt
Securities increased as set forth in Section 8 hereof) at a purchase price of
____% of the principal amount of such Debt Securities, plus accrued interest,
if any, from , 1994, to the Closing Date (as hereinafter defined):
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 that the foregoing correctly sets forth the
agreement between the Company and the several Underwriters 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 on Form S-3, 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) (i) 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 and (ii) the Company and the transactions contemplated by this
Agreement meet the requirements for using Form S-3 under the Securities Act.
(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 State of Delaware, 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, conforms to the description thereof in the Registration
Statement and the Prospectus, 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, will conform to the description thereof in the Prospectus, 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) 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.
(i) 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.
(j) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent public
accountants as required by the Securities Act and the regulations thereunder.
(k) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus present
fairly the financial position of the Company and its subsidiaries as at the
dates indicated and the results of their operations for the periods specified;
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the period or periods involved.
(l) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, of the Company and its subsidiaries, taken
as a whole, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business.
(m) The Company is not in violation of its charter or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any
of its properties may be bound, which default would have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and the
execution and delivery of this Agreement and the Indenture and the
consummation of the transactions contemplated herein and therein will not
conflict with or constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of the Company pursuant to any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company is a party or
by which it may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of its
knowledge, any law, administrative regulation or administrative or court order
or decree; and no consent, approval, authorization, order or decree of any
court or governmental agency or body is required for the consummation by the
Company of the transactions contemplated by this Agreement, except such as may
be required under the Securities Act, the Trust Indenture Act or state
securities or Blue Sky laws.
(n) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
its properties and to carry on its business as presently conducted.
Any certificate signed by any officer of the Company and delivered
to the Underwriters or to counsel for the Underwriters in connection with an
offering of Offered Securities shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
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 Offered 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 Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Payment for the Offered Securities
shall be made by certified or official bank check or checks payable to the
order of the Company in New York Clearing House (next day) 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 Offered
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 Offered Securities to the Underwriters duly paid. The Offered
Securities to be delivered to the Underwriters shall be made available to the
Manager in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
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 or enforce
contracts for the sale of 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,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, 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, in form and substance satisfactory to the Underwriters and
the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of Cahill Gordon & Reindel, 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.
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished
to the Manager such further certificates and documents as the Manager
shall have reasonably requested.
All such opinions, certificates, letters and other documents will
be in compliance with the provisions hereof only if they are satisfactory in
form and substance to the Manager and its counsel.
Any certificate or document signed by any officer of the Company
and delivered to the Manager, as representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
the Company to each Underwriter as to the statements made therein.
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 within a reasonable period after receipt of such
proposed amendment or supplement.
(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 for use, 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. In the event that the Company and
the Manager agree that the Prospectus should be amended or supplemented,
the Company, if reasonably requested by the Manager, will promptly issue
a press release announcing or disclosing the matters to be covered by
the proposed amendment or supplement.
(d) To endeavor and cooperate with the Manager and with counsel
for the Underwriters in connection with registration or qualification of
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 registration or qualification.
(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) The Company agrees to pay the following costs and expenses
and all other costs and expenses incident to the performance by it of
its obligations hereunder: (i) the preparation, printing (or
reproduction), and filing with the Commission of the registration
statement (including financial statements and exhibits thereto), each
preliminary prospectus, each Basic Prospectus, the Prospectus, each
amendment or supplement to any of them, this Agreement, the Indenture
and the Statement of Eligibility and Qualification of the Trustee; (ii)
the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies
of the registration statement, each preliminary prospectus, each Basic
Prospectus, the Prospectus, the incorporated documents, and all
amendments or supplements to any of them, as may reasonably be requested
for use in connection with the offering and sale of the Offered
Securities; (iii) the preparation, printing (or reproduction), execution
and delivery of the Indenture and the preparation, printing,
authentication, issuance and delivery of the Offered Securities,
including any stamp taxes in connection with the original issuance of
the Offered Securities; (iv) the printing (or reproduction) and delivery
of this Agreement, the preliminary and supplemental Blue Sky Memoranda
and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Offered Securities; (v)
the registration of the Offered Securities under the Exchange Act; (vi)
the registration or qualification of the Offered Securities for offer
and sale under the securities or Blue Sky laws of the several states as
provided in Section 5(d) hereof (including the reasonable fees, expenses
and disbursements of counsel for the Underwriters relating to the
preparations, printing (or reproduction), and delivery of the
preliminary and supplemental Blue Sky Memoranda and such registration and
qualification); (vii) the filing fees and the fees and expenses of
counsel for the Underwriters in connection with any filing required to
be made with the National Association of Securities Dealers, Inc.;
(viii) the fees and expenses of the Trustee; (ix) the fees and expenses
associated with obtaining ratings for the Offered Securities from
nationally recognized statistical rating organizations; (x) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective
purchasers of the Offered Securities; and (xi) the fees and expenses of
the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company.
(h) The Company will apply the net proceeds from the sale of the
Offered Securities substantially in accordance with the description set
forth in the Prospectus.
(i) The Company, during the period when the Prospectus is
required to be delivered under the Securities Act, will file promptly
all documents required to be filed with the Commission pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act and will promptly
supply copies of those documents to the Manager.
(j) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the
Commission for amendment of or a supplement to the Registration
Statement, any preliminary prospectus, Basic Prospectus or the
Prospectus or for additional information; (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the suspension of qualification of the
Offered Securities for offering or sale in any jurisdiction or the
initiation of any proceeding for such purpose; and (iii) within the
period of time that any Prospectus is required to be delivered under the
Securities Act in connection with sales of the Offered Securities by any
Underwriter or dealer, of any change in the Company's condition
(financial or other), business, prospects, properties, net worth or
results of operations, or of the happening of any event, which makes any
statement of a material fact made in the Registration Statement or the
Prospectus (as then amended or supplemented) untrue or which requires
the making of any additions to or changes in the Registration Statement
or the Prospectus (as then amended or supplemented) in order to state a
material fact required by the Securities Act or the regulations
thereunder to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or
supplement the Prospectus (as then amended or supplemented) to comply
with the Securities Act or any other law. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
6. 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 (i) from and against any and
all losses, claims, damages and liabilities arising out of 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, (ii) against
any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission if
such settlement is effected with the written consent of the Company and (iii)
against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Manager), reasonably incurred in
investigating, preparing or defending against any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission (except as made in reliance upon and
in conformity with information furnished by the Manager as aforesaid), to the
extent that any such expense is not paid under (i) or (ii) above.
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.
The Company agrees to indemnify and hold harmless each Underwriter
against any documentary stamp or similar issue tax and any related interest or
penalties on the original issuance and sale of the Offered Securities to the
Underwriters which are due in the United States, any state or municipality or
any other jurisdiction.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the three 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, (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 or
(iii) the indemnifying party has failed to retain counsel as set forth herein.
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 first or third
preceding paragraph, and by the Company, in the case of parties indemnified
pursuant to the second 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 60 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 6 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 6 are several in proportion to the respective principal amounts of
Offered Securities they have agreed to purchase hereunder, and not joint.
The Company and the Underwriters 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 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 6, 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 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.
The indemnity and contribution provisions contained in this
Section 6 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.
Any losses, claims, damages, liabilities or expenses for which an indemnified
party is entitled to indemnification or contribution under this Section 6
shall be paid by the indemnifying party to the indemnified party as such
losses, claims, damages, liabilities or expenses are incurred. A successor to
any Underwriter or any person controlling any Underwriter, or to the Company,
its directors or officers, or any person controlling the Company, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 6.
7. 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 Nasdaq National Market, 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
sole judgment of the Manager, impracticable or inadvisable to commence or
continue to market the Offered Securities on the terms and in the manner
contemplated in the Prospectus or to enforce contracts for the resale of the
Offered Securities by the Underwriters.
8. Defaulting Underwriters. If, on the Closing Date, any one or
more of the Underwriters shall fail or refuse to purchase Offered Securities
that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Offered 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 Offered Securities to be purchased on
such date, the non-defaulting Underwriters shall be obligated severally in the
proportions that the amount of Offered Securities set forth opposite their
respective names above bears to the aggregate amount of Offered 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 Offered
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 Offered Securities that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 8 by an
amount in excess of one-ninth of such amount of Offered Securities without the
written consent of such Underwriter. If, on the Closing Date, any Underwriter
or Underwriters shall fail or refuse to purchase Offered Securities and the
aggregate amount of Offered Securities with respect to which such default
occurs is more than one-tenth of the aggregate amount of Offered Securities to
be purchased on such date, and arrangements satisfactory to the Manager and
the Company for the purchase of such Offered 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. The term
"Underwriter" as used in this Agreement includes, for all purposes of this
Agreement, any party not listed herein who, with your approval and the
approval of the Company, purchases Offered Securities which a defaulting
Underwriter is obligated, but fails or refuses, to purchase.
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.
9. 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.
10. 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 non-assessable, and
(except for directors' qualifying shares and except as otherwise set
forth in the Registration Statement and Prospectus) 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 its 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 its 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 its subsidiaries is a
party or of which any property of the Company or any of its 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 has been duly authorized, executed and
delivered by the Company;
(viii) The Offered Securities are in due and proper form, as
contemplated by the Indenture, 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 qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and binding instrument,
enforceable in accordance with its terms, except as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(x) The issue and sale of the Offered Securities, 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 its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject, nor will such 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 its subsidiaries or any of their
properties;
(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
Securities 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 in the manner
contemplated by this Agreement;
(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 Securities 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 Securities 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 Securities 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;
(xiii) The statements in the Registration Statement and
Prospectus, under the headings "Description of Debt Securities," "Plan
of Distribution," "Description of the Notes" and "Underwriting" insofar
as they are descriptions or summaries of contracts, agreements or other
legal documents, or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be shown; and
(xiv) The Registration Statement and the Prospectus as amended
or supplemented and any further amendments and supplements thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities 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 Closing Date (other than the
financial statements and related schedules and other financial and
statistical 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 Closing Date (other
than the financial statements and related schedules and other financial
and statistical 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 under which they were made, not
misleading or that, as of the Closing Date, the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
Company prior to the Closing Date (other than the financial statements
and related schedules and other financial and statistical 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
under 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 States of Delaware and
Arkansas, 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 (xiv) 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, special 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 are in due and proper form, as
contemplated by the Indenture, 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 qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the parties thereto and constitutes a valid and binding instrument,
enforceable in accordance with its terms, except, as (a) the
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (b) rights of acceleration and
the availability of equitable remedies may be limited by equitable
principles of general applicability;
(iv) No consent, approval, authorization, order, registration
or qualification of or with any 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 Securities 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 in the manner contemplated by this
Agreement;
(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 Securities 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 or supplements thereto made
by the Company prior to the Closing Date (other than the financial
statements and related schedules and other financial and statistical
information therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of the
Securities 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 Closing Date (other than the
financial statements and related schedules and other financial and
statistical 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 Closing Date (other
than the financial statements and related schedules and other financial
and statistical 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 under which they were made, not
misleading or that, as of the Closing Date, 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 Closing
Date (other than the financial statements and related schedules and
other financial and statistical 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 under 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 Cahill Gordon & Reindel,
Counsel for the Underwriters
The opinion of Cahill Gordon & Reindel, 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
constitutes 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, fraudulent conveyance, reorganization
and other laws of general applicability relating to or 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 constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture; and
(iv) the Registration Statement and Prospectus (except for financial
statements and schedules and other financial and statistical data 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.
In addition, such counsel has participated in conferences with
officers and other representatives of the Company, representatives of the
independent public accountants for the Company and representatives of the
Underwriters, at which the contents of the Registration Statement and the
Prospectus were discussed and, although such counsel is not passing upon and
does not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus,
on the basis of the foregoing (relying as to materiality to a large extent
upon the opinions of officers and other representatives of the Company),
nothing has come to such counsel's attention that causes them to believe that
the Registration Statement at the time such Registration Statement became
effective 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 the Prospectus as of its date and
as of the date hereof, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading (it being understood that such counsel has not
been asked to, and does not, comment on the financial statements and schedules
and other financial and statistical data included or incorporated by reference
in the Registration Statement or the Prospectus or the exhibits to the
Registration Statement or the Statement of Eligibility and Qualification on
Form T-1 of the Trustee).
MURPHY OIL CORPORATION
$250,000,000
Medium-Term Notes
Due from 9 Months to 30 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 $250,000,000 (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 30 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 on Form S-3, 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 under the Securities Act. 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 State of Delaware, 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) 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.
(i) 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.
(j) The accountants who certified the financial statements
included or incorporated by reference in the Prospectus are independent public
accountants as required by the Securities Act and the regulations thereunder.
(k) The consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the Prospectus present
fairly the financial position of the Company and its subsidiaries as at the
dates indicated and the results of their operations for the periods specified;
except as stated therein, said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the period or periods involved.
(l) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise stated
therein or contemplated thereby, there has been no material adverse change, or
any development involving a prospective material adverse change, in the
condition, financial or otherwise, of the Company and its subsidiaries
considered as one enterprise or in the earnings, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business.
(m) The Company is not in violation of its charter or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which it is a party or by which it or any
of its properties may be bound, which default would have a material adverse
effect on the Company and its subsidiaries, taken as a whole; and the
execution and delivery of this Agreement, the Indenture and each applicable
Terms Agreement, if any, and the consummation of the transactions contemplated
herein and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
is a party or by which it may be bound or to which any of the property or
assets of the Company is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or, to the best of
its knowledge, any law, administrative regulation or administrative or court
order or decree; and no consent, approval, authorization, order or decree or
any court or governmental agency or body is required for the consummation by
the Company of the transactions contemplated by this Agreement, except such as
may be required under the Securities Act, the Trust Indenture Act or state
securities or Blue Sky laws.
(n) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
its properties and to carry on its business as presently conducted.
Any certificate signed by any officer of the Company and delivered
to the Agents or to counsel for the Agents in connection with an offering of
Notes shall be deemed a representation and warranty by the Company to the
Agents as to the matters covered thereby.
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 8 years . %
From 8 years to less than 9 years . %
From 9 years to less than 10 years . %
From 10 years to less than 15 years . %
From 15 years to less than 20 years . %
From 20 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 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 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.
(j) The Company, during the period when the Prospectus is
required to be delivered under the 1933 Act, will file promptly all documents
required to be filed with the Commission pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act and will promptly supply copies of those
documents to the Agents.
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 or enforce
contracts for the sale of 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 Nasdaq National
Market, the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities
have been required, by any of said exchanges or by order of the
Commission or any other governmental authority, (B) suspension of
trading of any securities of the Company on any exchange or in any
over-the-counter market, (C) if a banking moratorium in the United
States generally or in the City or the State of New York has been
declared by either Federal or New York authorities or if a banking
moratorium has been declared by the relevant authorities in the country
or countries of origin of any foreign currency or currencies underlying
the Notes, (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 or enforce contracts for the
sale of 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;
(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; and
(iv) there shall not have come to the relevant Agent's
attention any facts that would cause the Agent to believe that the
Prospectus, at the time it was required to be delivered to a purchaser
of Notes, contained 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 existing at the time of such delivery, not
misleading.
(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, in form and substance satisfactory to the Agents and Agents'
counsel 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 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 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 the Registration Statement and Prospectus 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 its 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 its 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 its subsidiaries is a party or of which
any property of the Company or any of its 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, if any, have been duly authorized, executed and
delivered by the Company;
(H) The Notes are in due and proper form, as
contemplated by the Indenture, 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 qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and binding instrument, enforceable in accordance with its
terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights generally and (b) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability;
(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 its
subsidiaries is a party or by which the Company or any of
its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the
provisions of the Certificate of Incorporation, 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 its subsidiaries or any of their
properties;
(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 Securities 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 by this Agreement;
(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 Securities 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 Securities 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;
(M) The statements in the Registration Statement and
Prospectus, under the headings "Description of Debt
Securities," "Plan of Distribution," "Description of the
Notes" and Underwriting" insofar as they are descriptions or
summaries of contracts, agreements or other legal documents,
or refer to statements of law or legal conclusions, are
accurate and present fairly the information required to be
shown; and
(N) 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 and statistical
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 and statistical
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 and statistical
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 under
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 and
statistical 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
under 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 States of Delaware and
Arkansas, 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 (N) 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,
in form and substance satisfactory to the Agents and Agents' counsel 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 are in due and proper form, as
contemplated by the Indenture, 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 qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the parties thereto and constitutes a valid
and binding instrument, enforceable in accordance with its
terms, except as (a) the enforceability thereof may be
limited by bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting
creditors' rights generally and (b) rights of acceleration
and the availability of equitable remedies may be limited by
equitable principles of general applicability;
(D) No consent, approval, authorization, order,
registration or qualification of or with any 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 by this Agreement;
(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 or
supplements thereto made by the Company prior to the date of
such opinion (other than the financial statements and related
schedules and other financial and statistical 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 and statistical 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 finanical
statements and related schedules and other financial and
statistical information therein, as to which such counsel
need express no opinion) contained an untrue statement of a
material fact necessary to make the statements therein, in
light of the circumstances under 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 and statistical 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 under 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 of the Indenture;
(C) The Indenture has been duly qualified under the
Trust Indenture Act and has been duly authorized, executed
and delivered by the Company and constitutes 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, fraudulent conveyance,
reorganization and other laws of general applicability
relating to or affecting creditors' rights generally and (b)
rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general
applicability; and
(D) The Registration Statement and Prospectus (except
for financial statements and schedules and other financial
and statistical data 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.
In addition, such counsel has participated in conferences
with officers and other representatives of the Company, representatives
of the independent public accountants for the Company and
representatives of the Agents, at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), nothing has come to
such counsel's attention that causes them to believe that the
Registration Statement at the time such Registration Statement became
effective 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 the Prospectus as of its
date and as of the date hereof, 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, in the light of the
circumstances under which they were made, not misleading (it being
understood that such counsel has not been asked to, and does not,
comment on the financial statements and schedules and other financial
and statistical data included or incorporated by reference in the
Registration Statement or the Prospectus or the exhibits to the
Registration Statement or the Statement of Eligibility and Qualification
on Form T-1 of the Trustee).
(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.)
(c) The Company shall cause its independent public accountants
to furnish the Agents a letter, dated the date of delivery of such letter, in
form and substance satisfactory to the Agents, of the type referred to in
Section 4(d) hereof at the following times: (i) within 30 days of the
Company's filing of its Annual Report on Form 10-K with the Commission; and
(ii) upon the request of the Agents at any time when the Company is actively
soliciting offers to purchase Notes.
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 (i) from and against any and all losses,
claims, damages and liabilities arising out of 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, (ii) against any
and all loss, liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission if such settlement
is effected with the written consent of the Company and (iii) against any and
all expense whatsoever, as incurred (including the fees and disbursements of
counsel chosen by the Agents), reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission (except as made in reliance upon and in conformity with
information furnished by the Agents as aforesaid), to the extent that any such
expense is not paid under (i) or (ii) above.
(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) The Company agrees to indemnify and hold harmless each Agent
against any documentary stamp or similar issue tax and any related interest or
penalties on the issue or sale of the Notes to the Agents which are due in the
United States, any state or municipality or any other jurisdiction.
(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a), (b) or (c) 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 paragraphs
(a) and (c) 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.
(e) If the indemnification provided for in 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 this Section 6, 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.
(f) 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 (e) above. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in paragraph (e) 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 (e) 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), 3(j), 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: William O. Hiltz (telefax number:
212-698-5802); 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: Medium Term Notes Desk (telefax number: 212-698-5902);
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: Manager, Medium Term Note Desk (telefax
number: 212-602-4939); 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 71731-7000, Attention: W. Bayless Rowe (telefax number
501-864-6489).
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, 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.]
[J.P. Morgan Securities Inc.]
[National Westminster Bank Plc,
New York Branch]
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 Smith Barney Inc., J.P. Morgan Securities Inc. and
National Westminster Bank Plc, New York Branch 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 Smith Barney Inc., J.P. Morgan Securities
Inc. and National Westminster Bank Plc, New York Branch 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 Smith Barney Inc., J.P. Morgan Securities Inc. and
National Westminster Bank Plc, New York Branch 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
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, 7, 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 (check the
required items):
1. Section 4(b)(i) - Opinion of General Counsel of
the Company
2. Section 4(b)(ii) - Opinion of Davis Polk &
Wardwell (special counsel for the Company)
3. Section 4(b)(iii) - Opinion of Cahill Gordon &
Reindel (counsel for the Agents)
4. Section 4(d) - Comfort Letter
5. Additional information, certificates and
documents listed below:
[NAME OF RELEVANT AGENT(S)]
By ______________________________
Title:
Accepted:
MURPHY OIL CORPORATION
By ________________________
Title:
- ----------------
(1) Delete if the transaction will not be syndicated.
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 Inc. 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 ("Chemical"), as trustee. In the Distribution Agreement, the
Agents have agreed to use reasonable efforts to solicit purchasers 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.
Chemical will be the Registrar, Calculation Agent, Trustee 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 Chemical, 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, Chemical 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 Chemical to DTC, dated as of ________, 1994, and a
Medium-Term Note Certificate Agreement between Chemical and DTC, dated as of
December 2, 1988 (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
Chemical. 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-
of Pricing Entry Note is accepted by or on
Supplement: behalf of the Company, 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
Procedures: to each 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
Rate 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
Chemical by telecopier or electronic
transmission (confirmed in writing
at any time on the same date) of the
information set forth in Settlement
Procedure "A" above. Chemical 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 telecopier as soon as
practicable.
C. Chemical 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
Chemical.
D. Chemical will complete,
authenticate and hold in custody the
Global Security representing such
Note.
E. DTC will credit such Note to
Chemical's participant account at
DTC.
F. Chemical will enter an SDFS
deliver order through DTC's
Participant Terminal System
instructing DTC to (i) debit such
Book-Entry Note from Chemical's
participant account and credit such
Book-Entry Note to the relevant
Agent's participant account and (ii)
debit such Agent's settlement
account and credit Chemical's
settlement account for an amount
equal to the price of such
Book-Entry Note less such Agent's
commission (if any). The entry of
such a deliver order shall
constitute a representation and
warranty by Chemical to DTC that (a)
the Global Security representing
such Book-Entry Note has been issued
and authenticated and (b) Chemical
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 Book-Entry Note from
such Agent's participant account and
credit such Book-Entry Note to the
participant accounts of the
Participants with respect to such
Book-Entry 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
Book-Entry 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. Chemical 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
Chemical in accordance with
Settlement Procedure "F".
J. Unless the relevant Agent is
the end purchaser of such Book-Entry
Note, such Agent will confirm the
purchase of such Book-Entry Note to
the purchaser either by transmitting
to the Participants with respect to
such Book-Entry Note a confirmation
order or orders through DTC's
institutional delivery system or by
mailing a written confirmation to
such purchaser.
K. Monthly, Chemical 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 Chemical
that have not yet been settled.
Settlement For sales by the Company of Book-
Procedures Entry Notes to or through an Agent
Timetable: (unless otherwise specified 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, Chemical, 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 Chemical fails to enter an
to Settle: SDFS deliver order with respect to a
Book-Entry Note pursuant to Settlement
Procedure "F", Chemical may deliver to
DTC, through DTC's Participant Terminal
System, as soon as practicable a
withdrawal message instructing DTC to
debit such Note to Chemical's participant
account, provided that Chemical'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, Chemical
will mark such Global Security
"cancelled," make appropriate entries in
Chemical'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,
Chemical 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,
Chemical 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, Chemical
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
Chemical 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 Chemical. 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 Certi-
of Pricing ficated Note is accepted by or on
Supplement: behalf of the Company, 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 Chemical by
telecopier 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
Chemical 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 Chemical.
3. Stub Two - For the relevant Agent.
4. Stub Three - For the Company.
D. Chemical 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 Chemical.
Such delivery will be made only against such
acknowledgment of receipt. The Agent shall
thereupon give to the Company 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, 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. Chemical will send Stub Three to the
Company by first-class mail. Monthly, Chemical
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 Chemical
that have not yet been settled.
Settlement For sales by the Company of Certifi-
Procedures cated Notes to or through an Agent
Timetable: (unless otherwise specified 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 Chemical by telephone and
return such Note to Chemical. 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
Chemical, 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,
Chemical will mark such Note "cancelled,"
make appropriate entries in Chemical's
records and send such Note to the Company.
=============================================================================
MURPHY OIL CORPORATION
as Issuer
and
CHEMICAL BANK
as Trustee
Indenture
Dated as of October 1, 1994
__________
=============================================================================
CROSS REFERENCE SHEET(*)
____________
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture to be dated as
of October 1, 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........................................................... 1
RECITALS.......................................................... 1
Authorization of Indenture............................... 1
Compliance with Legal Requirements....................... 1
Purpose of and Consideration for Indenture............... 1
ARTICLE ONE
DEFINITIONS.
SECTION 1.1. Certain Terms Defined.............................. 1
Board of Directors................................. 2
Business Day....................................... 2
Capital Lease Obligations.......................... 2
Capital Stock...................................... 2
Commission......................................... 2
Consolidated Net Tangible Assets................... 2
Corporate Trust Office............................. 3
Debt.............................................. 3
Depositary......................................... 3
Event of Default................................... 3
Funded Indebtedness................................ 3
Global Security.................................... 4
Holder, holder of securities,
Securityholder................................... 4
Indebtedness....................................... 4
Indenture.......................................... 4
Interest........................................... 4
Issuer............................................. 5
Issuer Order....................................... 5
Mortgage........................................... 5
Officers' Certificate.............................. 5
Opinion of Counsel................................. 5
Original Issue Discount Security................... 5
Outstanding........................................ 5
Periodic Offering.................................. 6
Person............................................. 6
Principal.......................................... 6
Principal Property................................. 6
Responsible Officer................................ 7
Restricted Subsidiary.............................. 7
Sale and Lease-back Transaction.................... 7
Security or Securities............................. 7
Senior Funded Indebtedness......................... 7
Senior Indebtedness................................ 7
Stockholders' Equity............................... 8
Subsidiary......................................... 8
Trust Indenture Act of 1939........................ 8
Trustee............................................ 8
U.S. Government Obligations........................ 8
vice president..................................... 8
Yield to Maturity.................................. 8
ARTICLE TWO
SECURITIES.
SECTION 2.1. Forms Generally.................................... 9
SECTION 2.2. Form of Trustee's Certificate
of Authentication.......................... 9
SECTION 2.3. Amount Unlimited; Issuable in Series............... 10
SECTION 2.4. Authentication and Delivery of
Securities................................. 12
SECTION 2.5. Execution of Securities............................ 14
SECTION 2.6. Certificate of Authentication...................... 17
SECTION 2.7. Denomination and Date of
Securities; Payments of Interest........... 17
SECTION 2.8. Registration, Transfer and Exchange................ 18
SECTION 2.9. Mutilated, Defaced, Destroyed, Lost
and Stolen Securities...................... 19
SECTION 2.10. Cancellation of Securities;
Disposition Thereof........................ 21
SECTION 2.11. Temporary Securities............................... 21
SECTION 2.12 Computation of Interest...................... 22
ARTICLE THREE
COVENANTS OF THE ISSUER AND THE TRUSTEE.
SECTION 3.1. Payment of Principal and Interest.................. 22
SECTION 3.2. Offices for Payments, etc.......................... 22
SECTION 3.3. Appointment to Fill a Vacancy in
Office of Trustee.......................... 22
SECTION 3.4. Paying Agents...................................... 23
SECTION 3.5. Certificate of the Issuer.......................... 24
SECTION 3.6. Securityholders' Lists............................. 24
SECTION 3.7. Reports by the Issuer.............................. 24
SECTION 3.8. Reports by the Trustee............................. 25
SECTION 3.9. Limitation on Liens................................ 25
SECTION 3.10. Limitation on Sale and Lease-Back
Transactions..................................... 26
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............. 27
SECTION 4.2. Collection of Indebtedness by Trustee;
Trustee May Prove Debt..................... 31
SECTION 4.3. Application of Proceeds............................ 34
SECTION 4.4. Suits for Enforcement.............................. 35
SECTION 4.5. Restoration of Rights on Abandonment
of Proceedings............................. 35
SECTION 4.6. Limitations on Suits by
Securityholders............................ 35
SECTION 4.7. Unconditional Right of
Securityholders to Institute
Certain Suits.............................. 36
SECTION 4.8. Powers and Remedies Cumulative;
Delay or Omission Not Waiver of
Default.................................... 36
SECTION 4.9. Control by Securityholders......................... 37
SECTION 4.10. Waiver of Past Defaults............................ 37
SECTION 4.11. Trustee to Give Notice of Default,
But May Withhold in Certain
Circumstances.............................. 38
SECTION 4.12. Right of Court to Require Filing
of Undertaking to Pay Costs................ 39
ARTICLE FIVE
CONCERNING THE TRUSTEE.
SECTION 5.1. Duties and Responsibilities of the
Trustee; During Default; Prior to
Default..................................... 39
SECTION 5.2. Certain Rights of the Trustee...................... 41
SECTION 5.3. Trustee Not Responsible for Recitals,
Disposition of Securities or
Application of Proceeds Thereof............ 42
SECTION 5.4. Trustee and Agents May Hold
Securities; Collections, etc............... 43
SECTION 5.5. Moneys Held by Trustee............................. 43
SECTION 5.6. Compensation and Indemnification
of Trustee and Its Prior Claim............. 43
SECTION 5.7. Right of Trustee to Rely on
Officers' Certificate, etc................. 44
SECTION 5.8. Persons Eligible for Appointment
as Trustee................................. 44
SECTION 5.9 Resignation and Removal; Appointment
of Successor Trustee....................... 44
SECTION 5.10. Acceptance of Appointment by
Successor Trustee.......................... 46
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business of Trustee.......... 47
SECTION 5.12. Preferential Collection of Claims
Against the Issuer......................... 48
ARTICLE SIX
CONCERNING THE SECURITYHOLDERS.
SECTION 6.1. Evidence of Action Taken by
Securityholders............................ 48
SECTION 6.2. Proof of Execution of Instruments and
of Holding of Securities; Record
Date....................................... 48
SECTION 6.3. Holders to Be Treated as Owners.................... 49
SECTION 6.4. Securities Owned by Issuer Deemed Not
Outstanding........................................ 49
SECTION 6.5. Right of Revocation of Action Taken................ 50
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1. Supplemental Indentures Without
Consent of Securityholders................. 51
SECTION 7.2. Supplemental Indentures With Consent
of Securityholders......................... 52
SECTION 7.3. Effect of Supplemental Indenture................... 54
SECTION 7.4. Documents to Be Given to Trustee................... 54
SECTION 7.5. Notation on Securities in Respect of
Supplemental Indentures.................... 54
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1. Issuer may Consolidate, etc., on
Certain Terms.............................. 54
SECTION 8.2. Successor Corporation Substituted.................. 55
SECTION 8.3. Opinion of Counsel to Trustee...................... 56
ARTICLE NINE
SATISFACTION AND DISCHARGE OF INDENTURE;
UNCLAIMED MONEYS.
SECTION 9.1. Satisfaction and Discharge of
Indenture.................................. 56
SECTION 9.2. Application by Trustee of Funds
Deposited for Payment of Securities........ 57
SECTION 9.3. Repayment of Moneys Held by Paying
Agent...................................... 58
SECTION 9.4. Return of Moneys Held By Trustee and
Paying Agent Unclaimed for Two
Years...................................... 58
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from
Individual Liability....................... 58
SECTION 10.2. Provisions of Indenture for the Sole
Benefit of Parties and Security-
holders.................................... 59
SECTION 10.3. Successors and Assigns of Issuer
Bound by Indenture......................... 59
SECTION 10.4. Notices and Demands on Issuer,
Trustee and Securityholders................ 59
SECTION 10.5. Officers' Certificates and Opinions
of Counsel; Statements to Be Con-
tained Therein............................. 60
SECTION 10.6. Payments Due on Saturdays, Sundays
and Holidays............................... 61
SECTION 10.7. Conflict of Any Provision of
Indenture with Trust Indenture
Act of 1939................................ 62
SECTION 10.8. New York Law to Govern............................. 62
SECTION 10.9. Counterparts....................................... 62
SECTION 10.10. Effect of Headings................................. 62
SECTION 10.11. Separability Clause................................ 62
ARTICLE ELEVEN
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.1. Applicability of Article........................... 62
SECTION 11.2. Notice of Redemption; Partial
Redemptions................................ 62
SECTION 11.3. Payment of Securities Called for
Redemption................................. 64
SECTION 11.4. Exclusion of Certain Securities from
Eligibility for Selection for
Redemption................................. 65
SECTION 11.5. Mandatory and Optional Sinking
Funds...................................... 65
ARTICLE TWELVE
DEFEASANCE
SECTION 12.1. Issuer's Option to Effect
Defeasance................................. 68
SECTION 12.2. Defeasances and Discharge.................... 68
SECTION 12.3. Covenant Defeasance.......................... 69
SECTION 12.4. Conditions to Defeasance..................... 69
SECTION 12.5. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Reinstatement; Miscellaneous............... 71
TESTIMONIUM....................................................... 73
SIGNATURES........................................................ 73
ACKNOWLEDGMENTS................................................... 74
THIS INDENTURE, dated as of October 1, 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 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, 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 after demand has been made and the passage of any
applicable grace period 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 default in the
payment of 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 such
series; 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, then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to such series 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 such 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 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 October 1, 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