SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported)
--------------------------------
Murphy Oil Corporation
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(Exact Name of Registrant as Specified in Charter)
Delaware File No. 71-0361522
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(State or Other Jurisdiction (Commission (IRS Employer
of Incorporation) File Number Identification No.)
200 Peach Street, P.O. Box 7000 El Dorado, Arkansas 71731-7000
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (870) 862-6411
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(Former Name or Former Address, if Changed Since Last Report)
ITEM 5. OTHER EVENTS
Exhibits are filed herewith in connection with the announcement by Murphy
Oil Corporation (the "Company") of the Company's earnings and certain other
financial information for the three-month period ended March 31, 1999.
Exhibits are filed herewith in connection with the issuance by the Company
of $250,000,000 aggregate principal amount of the Company's [__]% Notes due 2029
pursuant to the Company's Registration Statement on Form S-3 (File No.
33-55161).
ITEM 7. EXHIBITS
Exhibit 1.1 -- Form of Underwriting Agreement among the Company,
Salomon Smith Barney Inc, Chase Securities Inc., Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC and Warburg Dillon Read LLC, as the
underwriters.
Exhibit 4.1 -- Form of Indenture between the Company and SunTrust Bank,
Nashville, N.A., as Trustee (the "Trustee"), as amended by the Supplemental
Indenture.
Exhibit 4.2 -- Form of Supplemental Indenture between the Company and the
Trustee.
Exhibit 15.1 -- News Release dated April 21, 1999 by the Company announcing the
Company's earnings and certain other financial information for the three-month
period ended March 31, 1999.
2
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Murphy Oil Corporation
By: /s/ Walter K. Compton
--------------------------
Walter K. Compton
Secretary
Date: April 29, 1999
Exhibit 1.1
MURPHY OIL CORPORATION
$250,000,000
[ ]% Notes due 2029
Underwriting Agreement
New York, New York
[ ], 1999
Murphy Oil Corporation
200 Peach Street, P.O. Box 7000
El Dorado, Arkansas 71731-7000
Ladies and Gentlemen:
We (the "Manager") are acting on behalf of the underwriters (including
ourselves) identified on the table below (such underwriters being herein called
the "Underwriters"), and we understand that Murphy Oil Corporation, a Delaware
corporation (the "Company"), proposes to issue and sell $250,000,000 aggregate
principal amount of [ ]% Notes due 2029 (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
[ ], 1999, as amended by a Supplemental Indenture dated as of [ ],
1999 (as amended, the "Indenture") between the Company and SunTrust Bank,
Nashville, N.A., 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 at a purchase price of [ ]% of the principal
amount of such Debt Securities, plus
accrued interest, if any, from [ ], 1999, to the Closing Date (as
hereinafter defined):
Principal Amount of
Name Debt Securities
---- -------------------
Salomon Smith Barney Inc. $
Chase Securities Inc.
Goldman, Sachs & Co.
Nationsbanc Montgomery Securities LLC
Warburg Dillon Read LLC
Total . . . . . . $250,000,000
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at 825 Eighth Avenue, New York, New York 10019 at 9:00 a.m. (New York
City time) on [ ], 1999, or at such other time 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 Basic
Prospectus dated [ ], 1999, and the Prospectus Supplement dated [ ],
1999, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
The Offered Securities will be redeemable at the
Company's option, in whole or in part, at any time and from
time to time, at a redemption price equal to the greater of:
o 100% of the principal amount of the Offered
Securities to be redeemed
o the sum of the present values of the Remaining
Scheduled Payments (as defined in the Indenture)
on the Offered Securities being redeemed,
discounted to the redemption date on a semiannual
basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as
defined in the Indenture) plus [ ] basis points.
In each case, the Company will pay accrued
interest to the date of redemption.
Interest Payment Dates:
[ ] and [ ] commencing
[ ], 1999 (Interest accrues from
[ ], 1999)
All provisions contained in the document entitled Murphy Oil
Corporation Underwriting Agreement Standard Provisions (Debt Securities) dated
[ ], 1999, 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 (2) if any term defined in such document is otherwise defined
herein, the definition set forth herein shall control, (b) 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 (c) 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,
Salomon Smith Barney Inc.,
Acting severally on behalf of itself and the
several Underwriters named herein:
by:
Salomon Smith Barney Inc.,
by
-----------------------------
Name:
Title:
Accepted:
Murphy Oil Corporation,
by
--------------------
Name:
Title:
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
[ ], 1999
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 and, in the event any post-effective amendment
thereto or any registration statement (and any amendments thereto) filed
pursuant to Rule 462(b) under the Securities Act relating to the offering (a
"Rule 462(b) Registration Statement") becomes effective prior to the Closing
Date, also means such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. The term "Basic Prospectus" means
the prospectus in the form first filed with the Commission. 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
"Registration Statement", "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; (ii) the Company and the transactions
contemplated by this Agreement meet the requirements for using Form S-3
under the Securities Act; and (iii) the Company will next file with the
Commission either (1) the Prospectus Supplement relating to the Offered
Securities in accordance with Rules 430A and 424(b) or (2) the
Prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such Registration Statement all
information (other than Rule 430A Information (as defined below))
required by the Securities Act and the rules thereunder to be included
in such Registration Statement and the Prospectus. As filed, such
Prospectus shall contain all Rule 430A Information, together with all
other such required information, and, except to the extent the Manager
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to the Manager prior to the time this
Agreement is executed (the "Execution Time"), or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
Basic Prospectus and any preliminary prospectus) as the Company has
advised the Manager, prior to the Execution Time, will be included or
made therein. The Registration Statement, at the Execution Time, meets
the requirements set forth in Rule 415(a)(1)(x). "Rule 430A
Information" shall mean information with respect to the Offered
Securities and the offering thereof permitted to be omitted from the
Registration Statement pursuant to Rule 430A.
(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) On or prior to the Closing Date, the Indenture will have
been duly qualified under the Trust Indenture Act. The Indenture
conforms to the description thereof in the Registration Statement and
the Prospectus, has been duly authorized, and, when executed and
delivered by the Company, will be 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 wire transfer payable in same-day funds to an account specified
by the Company 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. Delivery of the Offered Securities shall be made through the facilities of
The Depository Trust Company unless the Manager shall otherwise instruct.
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 and statement of Cravath, Swaine & Moore, counsel for the
Underwriters, dated the Closing Date, to the effect set forth in
Exhibits C and D.
(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, or
before filing any Rule 462(b) Registration Statement, to furnish to the
Manager a copy of each such proposed amendment, supplement or Rule
462(b) Registration Statement and not to file any such proposed
amendment, supplement or Rule 462(b) Registration Statement to which
the Manager reasonably objects within a reasonable period after receipt
of such proposed amendment or supplement. Subject to the foregoing
sentence, the Company will cause the Prospectus, properly completed,
and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to the Manager of such timely filing.
(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, and, subject to Section 5(b),
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) The Company will not, without the prior written consent of
the Manager, offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company
or any person in privity with the Company or any affiliate of the
Company) directly or indirectly, including the filing (or participation
in the filing) of a registration statement with the Commission in
respect of, or establish or increase a put equivalent position or
liquidate or decrease a call equivalent position within the meaning of
Section 16 of the Exchange Act, any debt securities issued or
guaranteed by the Company (other than the Offered Securities) or
publicly announce an intention to effect any such transaction until the
Closing Date.
(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
Section 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) when the Prospectus, and
any supplement thereto, shall have been filed (if required) with the
Commission pursuant to Rule 424(b) or when any Rule 462(b) Registration
Statement shall have been filed with the Commission; (ii) of any
request
by the Commission for amendment of or a supplement to the Registration
Statement, any Rule 462(b) Registration Statement, preliminary
prospectus, Basic Prospectus or the Prospectus or for additional
information; (iii) 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 (iv) 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.
(b) 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
acknowledges that the statements set forth in the last paragraph of the cover
page regarding delivery of the Securities and, under the headings "Underwriting"
and "Plan of Distribution", (i) the list of Underwriters and their respective
participation in the sale of the Offered Securities, (ii) the sentences related
to concessions and reallowances and (iii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
preliminary prospectus and the Prospectus constitute the only information
furnished in writing by or on behalf of the several Underwriters for inclusion
in any preliminary prospectus or the Prospectus.
(c) 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.
(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 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 (A) such settlement is entered into more than 60 days after
receipt by such indemnifying party of the aforesaid request and (B) 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.
(e) 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.
(f) 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.
(g) 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 nondefaulting 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 nondefaulting 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:
(1) 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.
(2) 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 nonassessable.
(3) 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.
(4) 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.
(5) 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.
(6) 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.
(7) This Agreement has been duly authorized, executed and
delivered by the Company.
(8) 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;
(9) 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.
(10) 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.
(11) 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.
(12) 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.
(13) 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.
(14) 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 State of Delaware; provided
that (a) each such local counsel is acceptable to the Representatives, (b) 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 (c) counsel
shall state in their opinion that they believe that they and the Underwriters
are justified in relying thereon. With respect to subparagraph (14) 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:
(1) This Agreement has been duly authorized, executed and
delivered by the Company.
(2) 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.
(3) 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.
(4) 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.
(5) 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.
(6) 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, the State of New York and the General Corporation Law of the State of
Delaware. 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 Cravath, Swaine & Moore,
Counsel for the Underwriters
The opinion of Cravath, Swaine & Moore, counsel for the
Underwriters, to be delivered pursuant to Section 4(e) of the Underwriting
Agreement shall be to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Indenture has been duly authorized, executed and delivered
by the Company, and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time
to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether in a proceeding in
equity or at law).
(3) 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 legal, valid and binding obligations of the Company
entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and other similar laws affecting creditors' rights
generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether
in a proceeding in equity or at law).
(4) The Registration Statement became effective under the
Securities Act, and to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement
has been issued and no proceedings
for that purpose have been initiated or are pending or
contemplated under the Securities Act.
EXHIBIT D
Statement of Cravath, Swaine & Moore,
Counsel for the Underwriters
We have participated in conferences with certain officers of, and
with the accountants and counsel for, the Company concerning the preparation of
the Prospectus Supplement dated April [ ], 1999 (together with the Basic
Prospectus (as defined herein), the "Prospectus"), relating to the Offered
Securities, filed with the Securities and Exchange Commission (the "Commission")
pursuant to Rule 424(b) of the General Rules and Regulations under the
Securities Act of 1933 (the "Securities Act"). The Prospectus was filed as part
of the Registration Statement on Form S-3 (Registration No. 033-55161) filed
with the Commission on September 30, 1994 for registration under the Securities
Act of $250,000,000 aggregate amount of various securities of the Company, to be
issued from time to time by the Company (the "Registration Statement"), which
Registration Statement includes a prospectus dated April [ ], 1999 (together
with the documents incorporated therein by reference, the "Basic Prospectus").
The documents incorporated by reference in the Final Memorandum were prepared
and filed by the Company without our participation.
Although we have made certain inquiries and investigations in
connection with the preparation of the Registration Statement and Prospectus,
the limitations inherent in the role of outside counsel are such that we cannot
and do not assume responsibility for the accuracy or completeness of the
statements made in the Registration Statement and Prospectus, except insofar as
such statements relate to us. Subject to the foregoing, we hereby advise you
that our work in connection with this matter did not disclose any information
that gave us reason to believe that: (i) the Registration Statement, at the time
the Registration Statement became effective, or the Prospectus, as of the date
hereof (in each case except the financial statements and other information of a
statistical, accounting or financial nature included therein, as to which we do
not express any view), was not appropriately responsive in all material respects
to the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder, or (ii) the Registration Statement, at
the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading, or that the
Prospectus, at the date hereof, includes an untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included therein,
as to which we do not express any view).
Exhibit 4.1
======================================================
MURPHY OIL CORPORATION
as Issuer
and
SUNTRUST BANK, NASHVILLE, N.A.
as Trustee
Indenture
Dated as of , 1999
------------------
========================================================
CROSS REFERENCE SHEET*
------------------
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture to be
dated as of , 1999 between MURPHY OIL CORPORATION and SUNTRUST BANK,
Nashville, N.A., 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
- ----------
* This Cross Reference Sheet is not part of the Indenture.
2
317(a)......................................... 4.2
317(b)......................................... 3.4(a) and (b)
318(a)......................................... 10.7
3
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Certain Terms Defined...........................................1
ARTICLE 2
SECURITIES
SECTION 2.01. Forms Generally.................................................8
SECTION 2.02. Form of Trustee's Certificate of Authentication.................9
SECTION 2.03. Amount Unlimited; Issuable in Series............................9
SECTION 2.04. Authentication and Delivery of Securities......................11
SECTION 2.05. Execution of Securities........................................13
SECTION 2.06. Certificate of Authentication..................................16
SECTION 2.07. Denomination and Date of Securities; Payments of Interest......16
SECTION 2.08. Registration, Transfer and Exchange............................17
SECTION 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities......18
SECTION 2.10. Cancellation of Securities; Disposition Thereof................19
SECTION 2.11. Temporary Securities...........................................19
SECTION 2.12. Computation of Interest........................................20
ARTICLE 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.01. Payment of Principal and Interest..............................20
SECTION 3.02. Offices for Payments, Etc......................................20
SECTION 3.03. Appointment to Fill a Vacancy in Office of Trustee.............20
SECTION 3.04. Paying Agents..................................................21
SECTION 3.05. Certificate of the Issuer......................................22
SECTION 3.06. Securityholders Lists..........................................22
SECTION 3.07. Reports by the Issuer..........................................22
SECTION 3.08. Reports by the Trustee.........................................22
SECTION 3.09. Limitation on Liens............................................23
SECTION 3.10. Limitation on Sale and Lease-Back Transactions.................24
PAGE
----
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.01. Event of Default Defined; Acceleration of Maturity;
Waiver of Default....................................................25
SECTION 4.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt.................................................................28
SECTION 4.03. Application of Proceeds........................................30
SECTION 4.04. Suits for Enforcement..........................................32
SECTION 4.05. Restoration of Rights on Abandonment of Proceedings............32
SECTION 4.06. Limitations on Suits by Securityholders........................32
SECTION 4.07. Unconditional Right of Securityholders to Institute Certain
Suits................................................................33
SECTION 4.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default....................................................33
SECTION 4.09. Control by Securityholders.....................................33
SECTION 4.10. Waiver of Past Defaults........................................34
SECTION 4.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances................................................34
SECTION 4.12. Right of Court to Require Filing of Undertaking to Pay
Costs................................................................35
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default.....................................................36
SECTION 5.02. Certain Rights of the Trustee..................................37
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof........................38
SECTION 5.04. Trustee and Agents May Hold Securities, etc....................39
SECTION 5.05. Moneys Held by Trustee.........................................39
SECTION 5.06. Compensation and Indemnification of Trustee and Its
Prior Claim..........................................................39
SECTION 5.07. Right of Trustee to Rely on Officers' Certificate, etc.........40
SECTION 5.08. Persons Eligible for Appointment as Trustee....................40
SECTION 5.09. Resignation and Removal; Appointment of Successor
Trustee..............................................................40
SECTION 5.10. Acceptance of Appointment by Successor Trustee.................42
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business of Trustee..................................................43
ii
PAGE
----
SECTION 5.12. Preferential Collection of Claims Against the Issuer...........43
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Evidence of Action Taken by Securityholders....................43
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date..............................................44
SECTION 6.03. Holders to Be Treated as Owners................................44
SECTION 6.04. Securities Owned by Issuer Deemed Not Outstanding..............44
SECTION 6.05. Right of Revocation of Action Taken............................45
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of
Securityholders......................................................46
SECTION 7.02. Supplemental Indentures With Consent of Securityholders........47
SECTION 7.03. Effect of Supplemental Indenture...............................48
SECTION 7.04. Documents to Be Given to Trustee...............................49
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures...........................................................49
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Issuer May Consolidate, Etc., on Certain Terms.................49
SECTION 8.02. Successor Corporation Substituted..............................50
SECTION 8.03. Opinion of Counsel to Trustee..................................50
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.01. Satisfaction and Discharge of Indenture........................51
SECTION 9.02. Application by Trustee of Funds Deposited for Payment of
Securities...........................................................52
SECTION 9.03. Repayment of Moneys Held by Paying Agent.......................52
SECTION 9.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years..............................................52
iii
PAGE
----
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability..............................53
SECTION 10.02. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders......................................................53
SECTION 10.03. Successors and Assigns of Issuer Bound by Indenture...........53
SECTION 10.04. Notices and Demands on Issuer, Trustee and
Securityholders......................................................53
SECTION 10.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein...................................54
SECTION 10.06. Payments Due on Saturdays, Sundays and Holidays...............55
SECTION 10.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939................................................56
SECTION 10.08. New York Law to Govern........................................56
SECTION 10.09. Counterparts..................................................56
SECTION 10.10. Effect of Headings............................................56
SECTION 10.11. Separability Clause...........................................56
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01. Applicability of Article......................................56
SECTION 11.02. Notice of Redemption; Partial Redemptions.....................56
SECTION 11.03. Payment of Securities Called for Redemption...................58
SECTION 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption.............................................59
SECTION 11.05. Mandatory and Optional Sinking Funds..........................59
ARTICLE 12
DEFEASANCE
SECTION 12.01. Issuer's Option to Effect Defeasance..........................61
SECTION 12.02. Defeasances and Discharge.....................................61
SECTION 12.03. Covenant Defeasance...........................................62
SECTION 12.04. Conditions to Defeasance......................................62
SECTION 12.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Reinstatement; Miscellaneous..........................64
TESTIMONIUM...................................................................66
iv
PAGE
----
SIGNATURES....................................................................66
ACKNOWLEDGMENTS...............................................................67
v
THIS INDENTURE, dated as of , 1999 between MURPHY OIL CORPORATION (the
"Issuer"), a corporation organized under the laws of the State of Delaware, and
SUNTRUST BANK, NASHVILLE, N.A., a national banking association (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 1
DEFINITIONS
SECTION 1.01. 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.
1
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 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 Assets, there shall not be included as
assets, (i) all assets (other
2
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 Sixth Floor, SunTrust Center, 424 Church Street,
Nashville, Tennessee 37219.
"Debt" shall have the meaning set forth in Section 3.09.
"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 2.03 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 4.01.
"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
3
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 2.05, and bearing the legend prescribed in Section 2.05.
"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 3.09.
4
"New York Agency" means the office of Harris Trust Company of New York,
serving as agent of the Trustee in The City of New York, which office is, at the
date as of which this Indenture is dated, located at Nineteenth Floor, 88 Pine
Street, New York, New York 10005.
"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 10.05 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 10.05 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 4.01.
"Outstanding", when used with reference to Securities, shall, subject
to the provisions of Section 6.04, mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except
(a) Securities theretofore canceled 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 2.09 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such
5
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 4.01.
"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, marketing 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.
6
"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 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 and 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.
7
"Trust Indenture Act of 1939" (except as otherwise provided in Sections
7.01 and 7.02) 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 9.01.
"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 2
SECURITIES
SECTION 2.01. 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.
8
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 2.02. 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.
SUNTRUST BANK, NASHVILLE, N.A.,
as Trustee
By
---------------------------------
Authorized Officer
SECTION 2.03. 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 2.08, 2.09, 2.11, 7.05 or
11.03);
(3) the date or dates on which the principal of the Securities of
the series is payable;
9
(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 3.02);
(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 4.01 or provable in bankruptcy pursuant to Section 4.02;
(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
10
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 2.04. 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 2.03, be determined by or pursuant to
such Issuer Order and procedures. If provided for in such procedures, such
Issuer Order may authorize authentication
11
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 5.01) 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 2.01 and 2.03, respectively and prepared in
accordance with Section 10.05;
(4) an Opinion of Counsel, prepared in accordance with Section
10.05, 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 2.01 and 2.03 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
12
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 2.05. 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
13
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 2.03 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 canceled,
(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 2.03 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 2.05, unless and
until it is exchanged in whole or in part for Securities in definitive form, a
Global Security representing all or a portion of the Securities of a series may
not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or
14
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 2.05, the Issuer shall appoint a successor Depositary eligible under
this Section 2.05 with respect to such Securities. If a successor Depositary
eligible under this Section 2.05 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 2.03 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 2.03 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
15
(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 canceled 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 2.05 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 2.06. 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 2.07. 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
2.03. 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 such date and shall be payable on the dates, in each
case, which shall be specified as contemplated by Section 2.03.
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
16
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 2.08. 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 3.02 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 3.02, 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 3.02, 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
17
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 2.09. 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
18
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 canceled 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 canceled 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
19
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 3.02, 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 2.03 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 3
COVENANTS OF THE ISSUER AND THE TRUSTEE
SECTION 3.01. 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 3.02. 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 2.03,
the Issuer hereby initially
20
designates the New York Agency, 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 New York Agency.
SECTION 3.03. 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 5.09, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.04. 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
21
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 9.03 and 9.04.
SECTION 3.05. 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 3.06. 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 2.03 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 3.07. 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
22
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 3.08. 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 3.09. 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
23
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 10% of the Consolidated Net 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 3.09 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
24
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 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 4.01. 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
25
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 $25,000,000, 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,
26
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
27
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 4.01(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 4.01(g) or the holders of
not less than 25% in aggregate principal amount of the Securities of any series.
SECTION 4.02. 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.
28
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,
29
(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 5.06.
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
30
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 4.03. 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 5.06;
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
31
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 4.04. 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 4.05. 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 4.06. 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 4.09; it being understood and
32
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 4.07. 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 4.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default. Except as provided in Sections 2.09 and 4.06, 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 4.06, 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 4.09. 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
33
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 5.01) 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 5.01) 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 4.01, 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 4.01 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 7.02. Prior to a declaration of acceleration of the maturity
of the Securities of any series as provided in Section 4.01, 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 4.01, 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 7.02. 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
34
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 4.01 (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 4.01, 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.
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ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. 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;
36
(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 4.09 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties 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 5.01 are in furtherance of and subject
to Sections 315 and 316 of the Trust Indenture Act of 1939.
SECTION 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(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
37
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 5.03. 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
38
accountable for the use or application by the Issuer of any of the Securities or
of the proceeds thereof.
SECTION 5.04. Trustee and Agents May Hold Securities, 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 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 9.04 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 5.06. 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
39
particular Securities, and the Securities are hereby subordinated to such senior
claim.
SECTION 5.07. Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 5.01 and 5.02, 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 5.08. 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 5.09. 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
40
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 6.01 of the action in that regard taken by the
Securityholders.
41
(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 5.09 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 5.09 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 9.04,
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 5.06.
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
42
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 5.09. 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
5.08, 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 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. 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
43
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 5.01 and 5.02) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article.
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date. Subject to Sections 5.01 and 5.02, 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 6.01 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 6.03. 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 6.04. 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
44
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 5.01 and
5.02, 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 6.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 6.01, 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.
45
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. 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
46
desirable; provided that no such action shall adversely affect the
interestsof 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 2.01 and 2.03; 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 7.02.
SECTION 7.02. 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 each series affected by such supplemental indenture, 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
4.01 or the amount thereof provable in bankruptcy pursuant to Section 4.02, 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
47
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 6.01, 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 7.03. 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
48
deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
SECTION 7.04. Documents to Be Given to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, 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 7.05. 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 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. 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.
49
SECTION 8.02. 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 8.03. Opinion of Counsel to Trustee. The Trustee, subject to
the provisions of Sections 5.01 and 5.02, may receive an Opinion of Counsel,
prepared in accordance with Section 10.05, 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.
50
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.01. 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 2.09) 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
2.09) 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 9.04) 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 2.09) 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
51
Section 3.02), 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 9.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.04, all moneys deposited with the Trustee
pursuant to Section 9.01 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 9.03. 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 9.04. 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
52
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 10
MISCELLANEOUS PROVISIONS
SECTION 10.01. 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 10.02. 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 10.03. 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 10.04. 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
53
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 10.05. 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.
54
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
3.05) 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 10.06. 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
55
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 10.07. 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 10.08. 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 10.09. 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 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01. 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 2.03 for
Securities of such series.
SECTION 11.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or
56
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
3.04) 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
57
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 11.03. 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 5.05 and 9.04, 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 2.04 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.
58
SECTION 11.04. 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 11.05. 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 10.05) 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
59
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 11.02, 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 11.02 (and with the effect provided in Section 11.03)
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
60
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 12
DEFEASANCE
SECTION 12.01. 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 12.02 or Section 12.03 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 12.02. Defeasances and Discharge. Upon the Issuer's exercise of
the option set forth in Section 12.01 applicable to this Section, and after the
expiration of the 90-day (or other) period referred to in clause (6)(ii) of
Section
61
12.04, 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 12.04 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 2.08,
2.09 and 3.02, (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 12.02 notwithstanding the prior exercise of its option under
Section 12.03 with respect to the Securities of such series.
SECTION 12.03. Covenant Defeasance. Upon the Issuer's exercise of the
option set forth in Section 12.01 applicable to this Section, and after the
expiration of the 90-day (or other) period referred to in clause (6)(ii) of
Section 12.04, the Issuer shall be released from its obligations under Sections
3.09 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 4.01(d), but, except as specified above, the remainder of
this Indenture and the Securities of such series shall be unaffected thereby.
SECTION 12.04. Conditions to Defeasance. The following shall be the
conditions to application of either Section 12.02 or Section 12.03 to the
Outstanding Securities of any series.
62
(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 12.02, 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
63
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 12.03, 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
12.02 or the covenant defeasance under Section 12.03 (as the case may
be) have been complied with.
SECTION 12.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Reinstatement; Miscellaneous. Subject to the provisions of
Section 9.04, all money and U.S. Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 12.04 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 9.01 or 12.04 or the principal and interest
received
64
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 9.01 or 12.04 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 9.01 or 12.04; 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.
65
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first written above.
MURPHY OIL CORPORATION
By
---------------------------------
[CORPORATE SEAL]
Attest:
By
------------------------------------
SUNTRUST BANK, NASHVILLE, N.A.,
as Trustee
By
---------------------------------
[CORPORATE SEAL]
Attest:
By
------------------------------------
66
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
67
STATE OF ______________)
) 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 SUNTRUST
BANK, NASHVILLE, N.A., 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
68
Exhibit 4.2
================================================================================
MURPHY OIL CORPORATION
and
SUNTRUST BANK, NASHVILLE, N.A.
Trustee
--------------------------
Supplemental Indenture
Dated as of , 1999
--------------------------
$250,000,000 % Notes Due 2029
================================================================================
TABLE OF CONTENTS*
Page
PARTIES....................................................................1
RECITALS:
Purpose of Supplemental Indenture..........................................1
Form of Note [face]........................................................1
Form of Certificate of Authentication......................................3
Form of Note [reverse].....................................................4
Compliance with legal requirements.........................................7
Consideration..............................................................7
PART I: CREATION AND AUTHORIZATION OF SERIES...............................8
PART II: SPECIAL PROVISIONS APPLICABLE TO THIS SERIES......................8
TESTIMONIUM................................................................9
SIGNATURES AND SEALS.......................................................9
- -------------
* The Table of Contents is not part of this Supplemental Indenture.
i
SUPPLEMENTAL INDENTURE, dated as of , 1999, between Murphy Oil
Corporation, a Delaware corporation (hereinafter sometimes referred to as the
"Company"), and SUNTRUST BANK, NASHVILLE, N.A. a national banking association
(hereinafter sometimes referred to as the "Trustee").
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have entered into an Indenture
(the "Indenture") dated as of , 1999 providing for the issuance of debt
securities in series; and
WHEREAS, for its lawful corporate purposes, the Company desires to
create and authorize the series % Notes due , 2029 (hereinafter
referred to as the "Notes") in an aggregate principal amount of Two Hundred
Fifty Million Dollars ($250,000,000) and to provide the terms and conditions
upon which the Notes are to be executed, registered, authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Supplemental Indenture; and
WHEREAS, the Notes and the certificates of authentication to be borne
by the Notes are to be substantially in the following forms, respectively;
[FORM OF NOTE]
[FACE]
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of Cede & Co. or such other name as requested
by an authorized representative of DTC (and any payment is made to Cede & Co. or
to such other entity as is requested by an authorized representative of DTC),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.
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 the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
No. 1 CUSIP #
$250,000,000
MURPHY OIL CORPORATION
% Note Due 2029
Murphy Oil Corporation, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company"), for value
received, hereby promises to pay to Cede & Co. or registered assigns, the
principal sum of Two Hundred Fifty Million Dollars ($250,000,000) on ,
2029, at the office or agency of the Company in the Borough of Manhattan,
The City of New York, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on and of each year, commencing
, 1999, on said principal sum at said office or agency, in like coin or
currency, at the rate per annum specified in the title of this Note; provided,
that payment of interest may be made on any Note issued in definitive form, at
the option of the Company by check mailed to the address of the person entitled
thereto as such address shall appear on the Security register. Interest on the
Note will accrue from the most recent date to which interest has been paid,
or if no interest has been paid, from [the issue date]. The interest so payable
on any or , will, subject to certain exceptions provided in
the Indenture dated as of , 1999 (herein called the "Indenture") referred to on
the reverse hereof, be paid to the person in whose name this Note (or one or
more predecessor Notes) is registered at the close of business on or (whether
or not a Business Day), as the case may be, next preceding such or
. Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been executed by the Trustee
under the Indenture referred to on the reverse hereof by manual signature.
2
IN WITNESS WHEREOF, Murphy Oil Corporation has caused this instrument to
be duly executed.
MURPHY OIL CORPORATION
By
-------------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: , 1999
This is one of the Securities designated herein and referred to in the
within-mentioned Indenture.
SUNTRUST BANK, NASHVILLE, N.A.,
as Authorized Signatory
By:
---------------------------
Authorized Officer
3
[REVERSE OF NOTE]
MURPHY OIL CORPORATION
% Note Due 2029
This Note is one of a duly authorized issue of unsecured debentures,
notes, or other evidences of indebtedness of the Company (hereinafter called the
"Securities") of the series hereinafter specified, all issued or to be issued
under and pursuant to an indenture dated as of , 1999 (herein called the
"Indenture"), duly executed and delivered by the Company to SunTrust Bank,
Nashville, N.A., as Trustee (herein called the "Trustee"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as provided
in the Indenture. This Note is one of a series designated as the % Notes Due
2029 (the "Notes") of the Company, limited in aggregate principal amount to
$250,000,000.
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Securities of each series issued under such
Indenture then Outstanding and affected, to add any provisions to, or change in
any manner or eliminate any of the provisions of, such Indenture or modify in
any manner the rights of the Holders of the Securities of each series so
affected; provided that the Company and the Trustee may not, without the consent
of the Holder of each outstanding Security affected thereby, (i) extend the
stated 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 principal amount of any
original issue discount security payable upon acceleration or provable in
bankruptcy or impair or affect the right to institute suit for the payment on
any Security when due or (ii) reduce the aforesaid percentage in principal
amount of Securities of any series issued under such Indenture, the consent of
the Holders of which is required for any such
4
modification. It is also provided in the Indenture that, with respect to certain
defaults or Events of Default regarding the Securities of any series, prior to
any declaration accelerating the maturity of such Securities, the Holders of a
majority in aggregate principal amount Outstanding of the Securities of such
series (or, in the case of certain defaults or Events of Default, all or certain
series of the Securities) may on behalf of the Holders of all the Securities of
such series (or, in the case of certain defaults or Events of Default, all or
certain series of the Securities, as the case may be) waive any such past
default or Event of Default and its consequences. The preceding sentence shall
not, however, apply to a default in the payment of the principal of or interest
on any of the Securities. Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Indenture) shall be conclusive and binding
upon such Holder and upon all future Holders and owners of this Note and any
Notes which may be issued in exchange or substitution herefor or on registration
of transfer hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note in
the manner, at the respective times, at the rate and in the coin or currency
herein prescribed.
The Notes are redeemable as a whole or in part, at the option of the
Company at any time and from time to time, at a redemption price equal to the
greater of (i) 100% of principal amount of such Notes, or (ii) the sum of the
present values of the Remaining Scheduled Payments of the Notes being redeemed,
discounted to the redemption date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus basis points,
plus in each case accrued interest thereon, if any, to the date of redemption.
"Remaining Scheduled Payments" means the remaining scheduled payments of
the principal of and interest on each Note to be redeemed that would be due
after the related redemption date but for such redemption. If the redemption
date is not an interest payment date with respect to the Note being redeemed,
the amount of the next succeeding scheduled interest payment on the Note will be
reduced by the amount of interest accrued thereon to that redemption date.
"Treasury Rate" means the rate per annum equal to the semiannual
equivalent yield to maturity (computed as of the second business day immediately
preceding the redemption date) of the Comparable Treasury Issue, assuming a
price for the Comparable Treasury Issue (expressed as a percentage of its
5
principal amount) equal to the Comparable Treasury Price for the redemption
date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Notes.
"Comparable Treasury Price" means:
o the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its
principal amount) as of the third business day preceding the
redemption date, as set forth in the daily statistical release
(or any successor release) published by the Federal Reserve Bank
of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or
o if that release (or any successor release) is not published or
does not contain such prices on that business day, (a) the
average of the Reference Treasury Dealer Quotations for the
redemption date, after excluding the highest and lowest of such
Reference Treasury Dealer Quotations, or (b) if the Trustee
obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all quotations obtained
"Independent Investment Banker" means one of the Reference Treasury
Dealers that the Company appoints.
"Reference Treasury Dealer" means each of Salomon Smith Barney Inc. (and
its successors) and four other nationally recognized investment banking firms
that are primary U.S. Government securities dealers specified from time to time
by the Company. If, however, any of them shall cease to be a primary U.S.
Government securities dealer, the Company will substitute another nationally
recognized investment banking firm that is such a dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer as of 3:30 p.m., New
York time, on the third business day preceding the redemption date.
6
The Notes are issuable in registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and in
the manner and subject to the limitations provided in the Indenture, but without
the payment of any service charge, Notes may be exchanged for a like aggregate
principal amount of Notes of other authorized denominations.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor, subject
to the limitations provided in the Indenture, without charge except for any tax
or other governmental charge imposed in connection therewith.
The Company, the Trustee and any authorized agent of the Company or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and subject to the provisions
on the face hereof, interest hereon, and for all other purposes, and none of the
Company, the Trustee or any authorized agent of the Company or the Trustee shall
be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any Note,
or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
Terms used herein which are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture.
AND WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by or on behalf of the
Trustee as in this Indenture provided, the valid, binding and legal obligations
of
7
the Company, and to constitute these presents a valid Indenture and agreement
according to its terms, have been done and performed.
NOW THEREFORE:
In order to declare the terms and conditions upon which the Notes are
executed, registered, authenticated, issued and delivered, and in consideration
of the premises, of the purchase and acceptance of such Notes by the holders
thereof and of the sum of one dollar to it duly paid by the Trustee at the
declaration of these presents, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders from time to time by such Notes, as follows:
PART I
CREATION AND AUTHORIZATION OF NOTES
There is hereby created and authorized the series of Notes entitled the
" % Notes due 2029", which shall be a closed series limited to $250,000,000
aggregate principal amount (except such Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes of
this series pursuant to Sections 2.08, 209, 2.11 or 11.03).
PART II
SPECIAL PROVISIONS APPLICABLE TO THIS SERIES
There are no special provisions applicable to this Series.
8
IN WITNESS WHEREOF, Murphy Oil Corporation has caused this Supplemental
Indenture to be signed and delivered and its corporate seal to be affixed
hereunto and the same to be attested, and the Trustee has caused this
Supplemental Indenture to be signed and delivered and its corporate seal to be
affixed hereunto and the same to be attested, all as of the day and year first
written above.
MURPHY OIL CORPORATION
By
-----------------------------------
[CORPORATE SEAL]
ATTEST:
--------------------------------------
SUNTRUST BANK, NASHVILLE, N.A.,
AS TRUSTEE
By
-----------------------------------
--------------------------------------
[CORPORATE SEAL]
ATTEST:
--------------------------------------
9
Exhibit 15.1
Letterhead of Murphy Oil Corporation
FOR RELEASE: April 21, 1999 - 7:30a.m. EDT
Contact: Kevin Fitzgerald Betty LeBrescu
Investor Relations Public Relations
(870) 864-6272 (870) 864-6222
MURPHY OIL ANNOUNCES FIRST QUARTER OPERATING RESULTS
EL DORADO, AR - Murphy Oil Corporation's President and Chief Executive
Officer, Claiborne P. Deming, announced today that the loss before special items
in the first quarter of 1999 totaled $5.7 million, $.13 a share, compared to net
income of $15.5 million, $.35 a share, in the first quarter a year ago. The net
loss in the current quarter totaled $6.7 million, $.15 a share, and included an
after-tax charge of $1 million, $.02 a share, for a reduction in force.
In commenting on the operating results, Mr. Deming said, "Worldwide
downstream operations earned $2.9 million in the current quarter compared to
$12.4 million a year ago, as margins in both the U.S. and the U.K. were under
pressure throughout the quarter. Exploration and production operations reported
a loss of $3.2 million in the current quarter compared to earning $6 million a
year ago, with an 18% increase in crude oil production more than offset by a 9%
decline in average worldwide crude oil sales prices, a 21% reduction in U.S.
natural gas sales prices, and a 45% increase in exploration expenses."
Exploration and production operations in the U.S. reported a loss of
$4.7 million compared to earnings of $7 million in the first quarter of 1998.
Operations in Canada earned $.2 million compared to $.5 million a year ago, and
U.K. operations earned $1.5 million in the current
more . . .
Page 2
quarter, up from $.6 million. Operations in Ecuador earned $1 million in the
first quarter of 1999 compared to $1.4 million a year ago. Other international
operations reported a loss of $1.2 million compared to a $3.5 million loss a
year earlier. The Company's worldwide crude oil and condensate sales price
averaged $10.57 a barrel in the current quarter compared to $11.65 a year ago.
Total crude oil and gas liquids production averaged 63,555 barrels a day
compared to 54,059 in the first quarter of 1998. The increase was due to
production from new fields in the U.K. and Canada and an increase in synthetic
oil production in Canada. Natural gas sales prices in the U.S. averaged $1.84 an
MCF in the current quarter compared to $2.33 a year ago. Natural gas sales
prices in Canada averaged $1.55 an MCF, an increase of 40%. Total natural gas
sales averaged 251 million cubic feet a day compared to 249 million a year ago.
Sales of natural gas in the U.S. averaged 177 million cubic feet a day, down
from 189 million in the first quarter of 1998. Canadian natural gas sales
averaged 54 million cubic feet a day in the current quarter, up 17%. Exploration
expenses totaled $26.3 million in the current quarter compared to $18.1 million
a year ago.
Refining, marketing and transportation operations in the U.S. broke
even during the first quarter of 1999 compared to earning $6 million a year ago.
Operations in the U.K. earned $1.3 million in the current quarter compared to
$4.5 million in the first quarter of 1998. Earnings from purchasing,
transporting and reselling crude oil in Canada were $1.6 million in the current
quarter compared to $1.9 million in the first quarter of 1998. Refinery crude
runs were 91,213 barrels a
more . . .
Page 3
day compared to 167,031 in the first quarter of 1998, and refined product sales
were 117,398 barrels a day, down from 174,027 a year ago. Both were adversely
affected by a scheduled turnaround at the Company's Meraux, Louisiana refinery.
Corporate functions reflected a loss of $5.4 million in the current
quarter compared to a loss of $2.9 million in the first quarter of 1998.
Net cash from operating activities excluding changes in noncash working
capital items totaled $47.9 million, $1.07 a share, in the first quarter of 1999
and included $26.1 million of turnaround charges at the Meraux refinery. In the
first quarter of 1998 net cash from operating activities totaled $83.1 million,
$1.85 a share.
Summary financial data and operating statistics for the first quarter
of 1999 with comparisons to 1998 are contained in the attached tables.
#####
Murphy Oil Corporation
FUNCTIONAL RESULTS OF OPERATIONS (Unaudited)
(Millions of dollars)
Three Months Ended Three Months Ended
March 31, 1999 March 31, 1998
- --------------------------------------------------------------------------------------------------------------------
Revenues Income Revenues* Income
- --------------------------------------------------------------------------------------------------------------------
Exploration and production
United States....................................... $ 40.3 (4.7) 52.2 7.0
Canada.............................................. 35.0 .2 31.2 .5
United Kingdom...................................... 23.1 1.5 21.9 .6
Ecuador............................................. 4.7 1.0 5.7 1.4
Other............................................... .6 (1.2) .8 (3.5)
- --------------------------------------------------------------------------------------------------------------------
103.7 (3.2) 111.8 6.0
- --------------------------------------------------------------------------------------------------------------------
Refining, marketing and transportation
United States....................................... 163.6 - 269.3 6.0
United Kingdom...................................... 45.9 1.3 74.1 4.5
Canada.............................................. 6.5 1.6 7.0 1.9
- --------------------------------------------------------------------------------------------------------------------
216.0 2.9 350.4 12.4
- --------------------------------------------------------------------------------------------------------------------
319.7 (.3) 462.2 18.4
Intersegment transfers elimination....................... (16.8) - (22.4) -
- --------------------------------------------------------------------------------------------------------------------
302.9 (.3) 439.8 18.4
Corporate................................................ 1.4 (5.4) .9 (2.9)
- --------------------------------------------------------------------------------------------------------------------
Revenues/income (loss) before special item............... 304.3 (5.7) 440.7 15.5
Provision for reduction in force......................... - (1.0) - -
- --------------------------------------------------------------------------------------------------------------------
Total revenues/net income (loss) $ 304.3 (6.7) 440.7 15.5
====================================================================================================================
*Certain amounts have been restated to conform to current presentation.
Murphy Oil Corporation
OIL AND GAS OPERATING RESULTS (Unaudited)
United Synthetic
United King- Oil -
(Millions of dollars) States Canada dom Ecuador Other Canada Total
- ---------------------------------------------------------------------------------------------------------------------------
Three Months Ended March 31, 1999
Oil and gas sales and operating revenues $ 40.3 22.5 23.1 4.7 .6 12.5 103.7
Production costs 9.6 8.7 9.6 1.6 - 8.7 38.2
Depreciation, depletion and amortization 15.7 8.9 11.0 2.1 - 1.7 39.4
Exploration expenses
Dry hole costs 13.0 2.0 - - - - 15.0
Geological and geophysical costs 3.5 2.5 .3 - .7 - 7.0
Other costs .4 .2 .3 - .7 - 1.6
- ---------------------------------------------------------------------------------------------------------------------------
16.9 4.7 .6 - 1.4 - 23.6
Undeveloped lease amortization 1.8 .9 - - - - 2.7
- ---------------------------------------------------------------------------------------------------------------------------
Total exploration expenses 18.7 5.6 .6 - 1.4 - 26.3
- ---------------------------------------------------------------------------------------------------------------------------
Selling and general expenses 4.1 1.5 .8 - .3 - 6.7
Income tax expense (benefit) (3.1) (1.0) (.4) - .1 .7 (3.7)
- ---------------------------------------------------------------------------------------------------------------------------
Results of operations (excluding
corporate overhead and interest) $ (4.7) (1.2) 1.5 1.0 (1.2) 1.4 (3.2)
===========================================================================================================================
- ---------------------------------------------------------------------------------------------------------------------------
Three Months Ended March 31, 1998
- ---------------------------------------------------------------------------------------------------------------------------
Oil and gas sales and operating revenues $ 52.2 18.8 21.9 5.7 .8 12.4 111.8
Production costs 9.9 9.6 7.9 1.8 - 7.1 36.3
Depreciation, depletion and amortization 18.3 8.7 9.9 2.5 - 1.5 40.9
Exploration expenses
Dry hole costs 5.4 1.0 - - 2.7 - 9.1
Geological and geophysical costs 2.1 2.0 .3 - .3 - 4.7
Other costs .3 .2 .4 - .7 - 1.6
- ---------------------------------------------------------------------------------------------------------------------------
7.8 3.2 .7 - 3.7 - 15.4
Undeveloped lease amortization 1.6 1.1 - - - - 2.7
- ---------------------------------------------------------------------------------------------------------------------------
Total exploration expenses 9.4 4.3 .7 - 3.7 - 18.1
- ---------------------------------------------------------------------------------------------------------------------------
Selling and general expenses 4.1 1.7 .8 - .4 - 7.0
Income tax expense (benefit) 3.5 (3.3) 2.0 - .2 1.1 3.5
- ---------------------------------------------------------------------------------------------------------------------------
Results of operations (excluding
corporate overhead and interest) $ 7.0 (2.2) .6 1.4 (3.5) 2.7 6.0
===========================================================================================================================
Murphy Oil Corporation
SUMMARIZED CONSOLIDATED STATEMENTS OF INCOME (Unaudited)
(Thousands of dollars, except per share amounts)
Three Months Ended
March 31,
----------------------
1999 1998
------ ------
Revenues....................................................... $ 304,266 440,651
------- -------
Costs and expenses
Crude oil, products and related operating expenses.......... 220,015 329,421
Exploration expenses........................................ 26,339 18,054
Selling and general expenses................................ 16,526 16,768
Depreciation, depletion and amortization.................... 46,595 50,272
Provision for reduction in force............................ 1,513 -
Interest expense, net....................................... 4,471 1,326
------- -------
315,459 415,841
------- -------
Income (loss) before income taxes ............................. (11,193) 24,810
Income tax expense (benefit)................................... (4,495) 9,269
------- -------
Net income (loss).............................................. $ (6,698) 15,541
======= =======
Net income (loss) per Common share
Basic....................................................... $ (.15) .35
Diluted..................................................... (.15) .35
Dividends per Common share..................................... $ .35 .35
Average Common shares outstanding (thousands)
Basic....................................................... 44,955 44,940
Diluted..................................................... 44,955 45,016
Murphy Oil Corporation
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME (Unaudited)
(Thousands of dollars)
Three Months Ended
March 31,
----------------------
1999 1998
------ ------
Net income (loss) as reported.................................. $ (6,698) 15,541
Other comprehensive income (loss) - net gain (loss) from
foreign currency translation.................................. (2,228) 6,379
------- -------
Comprehensive income (loss).................................... $ (8,926) 21,920
====== ======
Murphy Oil Corporation
OTHER FINANCIAL DATA
(Unaudited, except for December 31, 1998)
(Millions of dollars)
1999 1998
---- ----
At March 31, 1999 and December 31, 1998
Working capital............................................. $ 109.1 56.6
Total assets................................................ 2,221.5 2,164.4
Long-term debt
Nonrecourse.............................................. 144.8 143.8
Other.................................................... 303.1 189.7
Stockholders' equity........................................ 954.0 978.2
Three Months Ended March 31
Capital expenditures
Exploration and production
United States......................................... $ 35.2 34.9
International......................................... 46.2 57.8
----- -----
81.4 92.7
----- -----
Refining, marketing and transportation
United States......................................... 11.3 6.7
International......................................... 1.2 2.3
------ -----
12.5 9.0
----- -----
Corporate................................................ .3 .3
------- -----
Total capital expenditures......................... 94.2 102.0
----- -----
Charged to exploration expenses1
United States......................................... 16.9 7.8
International......................................... 6.7 7.6
------ -----
Total charged to exploration expenses.............. 23.6 15.4
----- -----
Total capitalized.................................. $ 70.6 86.6
===== =====
Net cash from operating activities2......................... $ 47.9 83.1
===== =====
1 Excludes amortization of undeveloped leases of $2.7 million
each in 1999 and 1998.
2 Excludes changes in noncash operating working capital items.
Murphy Oil Corporation
STATISTICAL SUMMARY
Three Months Ended
March 31,
- -------------------------------------------------------------------------------------------------
1999 1998
- -------------------------------------------------------------------------------------------------
Net crude oil, condensate and gas liquids produced - barrels a day........ 63,555 54,059
Crude oil and condensate
United States......................................................... 7,493 7,712
Canada - light........................................................ 3,225 3,244
- heavy ....................................................... 9,239 10,630
- offshore..................................................... 3,976 2,481
- synthetic.................................................... 11,036 8,733
United Kingdom........................................................ 19,506 12,033
Ecuador............................................................... 7,380 7,393
Natural gas liquids
United States......................................................... 794 813
Canada................................................................ 525 577
United Kingdom........................................................ 381 443
Net natural gas sold - thousands of cubic feet a day...................... 250,811 249,058
United States......................................................... 177,375 189,089
Canada................................................................ 53,773 45,977
United Kingdom........................................................ 19,663 13,992
Total hydrocarbons produced - equivalent barrels a day1................... 105,357 95,569
Weighted average sales prices
Crude oil and condensate - dollars a barrel2
United States......................................................... $ 11.70 14.60
Canada3 - light....................................................... 11.31 13.27
- heavy....................................................... 8.25 5.12
- offshore.................................................... 12.38 12.98
- synthetic................................................... 12.62 15.30
United Kingdom........................................................ 10.92 13.99
Ecuador............................................................... 7.06 8.67
Natural gas liquids - dollars a barrel2
United States......................................................... $ 9.34 13.86
Canada3 .............................................................. 8.17 11.22
United Kingdom........................................................ 8.85 11.59
Natural gas - dollars a thousand cubic feet
United States......................................................... $ 1.84 2.33
Canada3............................................................... 1.55 1.11
United Kingdom3....................................................... 1.80 2.09
Refinery inputs - barrels a day........................................... 98,848 181,591
United States ........................................................ 63,010 143,168
United Kingdom........................................................ 35,838 38,423
Petroleum products sold - barrels a day................................... 117,398 174,027
United States4........................................................ 88,365 135,190
Gasoline............................................................ 47,853 60,586
Kerosine............................................................ 5,336 12,696
Diesel and home heating oils........................................ 26,755 40,306
Residuals........................................................... 6,565 16,141
Asphalt, LPG and other.............................................. 1,856 5,461
United Kingdom........................................................ 28,404 38,556
Gasoline............................................................ 11,015 14,621
Kerosine............................................................ 3,601 4,675
Diesel and home heating oils........................................ 9,446 12,386
Residuals........................................................... 2,995 5,106
LPG and other....................................................... 1,347 1,768
Canada................................................................ 629 281
1 Natural gas converted on an energy equivalent basis of 6:1.
2 Includes intracompany transfers at market prices.
3 U.S. dollar equivalent.
4 Certain volumes for 1998 have been restated to conform to current
presentation.
