As filed with the Securities and Exchange Commission on August 5, 1999
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
MURPHY OIL CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 71-0361522
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Steven A. Cosse
200 Peach Street Senior Vice President and
P.O. Box 7000 General Counsel
El Dorado, Arkansas 71731-7000 200 Peach Street
(870) 862-6411 P.O. Box 7000
El Dorado, Arkansas 71731-7000
(870) 862-6411
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of Registrant's principal executive area code, of agent for service)
offices)
---------------
Copies to:
Marlene Alva
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
---------------
Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plan, check the following box. [x]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
---------------
CALCULATION OF REGISTRATION FEE
=============================================================================================================================
Proposed
Maximum Proposed
Amount Offering Maximum Amount of
Title of Each Class of to be Price Aggregate Offering Registration
Securities to be Registered Registered(1) Per Unit(2) Price Fee
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock, $1.00 par value, with Rights........
- --------------------------------------------------
Preferred Stock, $100 par value...................
- --------------------------------------------------
Depositary Shares representing Preferred Stock.... $1,000,000,000 100% $1,000,000,000 $278,000
- --------------------------------------------------
Debt Securities...................................
- --------------------------------------------------
Warrants..........................................
=============================================================================================================================
(1) Such amount in U.S. dollars or the equivalent thereof in foreign
currencies as shall result in an aggregate initial public offering price
for all securities of $1,000,000,000.
(2) Estimated solely for the purpose of calculating the registration fee.
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
The information in this prospectus is not complete and may be changed. We
may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting offers to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, AUGUST 5, 1999
PROSPECTUS
[MURPHY OIL LOGO]
$1,000,000,000
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
---------------
We will provide specific terms of these securities in supplements to this
prospectus. You should read this prospectus and any supplement carefully before
you invest.
We will not use this prospectus to confirm sales of any securities unless
it is attached to a prospectus supplement.
Our common stock is listed on the New York Stock Exchange and the Toronto
Stock Exchange under the symbol "MUR." Unless we state otherwise in a prospectus
supplement, we will not list any of the other securities on any securities
exchange.
---------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
---------------
This prospectus is dated , 1999
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission utilizing a "shelf" registration process.
Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of $1,000,000,000. This prospectus provides you with a general
description of the securities we may offer. Each time we sell securities, we
will provide a prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may also add, update
or change information contained in this prospectus. You should read both this
prospectus and any prospectus supplement together with the additional
information described under the heading "Where You Can Find More Information
About Murphy Oil".
MURPHY OIL CORPORATION
We are an integrated oil company with worldwide oil and gas exploration
and production operations, refining and marketing operations in the United
States and the United Kingdom, and pipeline and crude oil trading operations in
Canada.
During 1998, our principal exploration and production activities were
conducted in the United States, Canada, the United Kingdom and Ecuador. Our core
operating areas include the Gulf of Mexico, the Jeanne d'Arc basin off the east
coast of Canada, western Canada and the United Kingdom.
Our estimated net proved hydrocarbon reserves at the end of 1998 were 380
million barrels of oil equivalent and our 1998 worldwide production was 97,612
barrels of oil equivalent per day.
We own refineries located in Meraux, Louisiana and Superior, Wisconsin
and have an effective 30% interest in a refinery located in Milford Haven,
Wales. We have built an integrated presence in each of our refinery markets by
providing products to 59 terminals serving approximately 550 retail and
wholesale stations and numerous unbranded customers in the United States and 10
terminals supplying almost 400 retail and wholesale stations in the United
Kingdom.
Our principal executive offices are located at 200 Peach Street, P.O. Box
7000, El Dorado, Arkansas 71731-7000, telephone number (870) 862-6411. Our
capital stock is listed on the New York Stock Exchange and on the Toronto Stock
Exchange under the symbol "MUR". Unless otherwise indicated or the context
otherwise requires, we refer to Murphy Oil Corporation and its wholly owned
subsidiaries as "we", "our" or "Murphy Oil" in this prospectus.
WHERE YOU CAN FIND MORE INFORMATION ABOUT MURPHY OIL
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus the
information we file with it, which means that we can disclose important
information to you by referring you to those documents. The information
incorporated by reference is considered to be a part of this prospectus.
Information filed after the date of this prospectus with the SEC will update and
supersede this information. We incorporate by reference the documents listed
below and any future filings made with the SEC under Section 13(a), 13(c), 14,
or 14(d) of the Securities Exchange Act of 1934 until our offering is completed:
(a) Annual Report on Form 10-K for the year ended December 31, 1998;
1
(b) Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
and
(c) The description of our preferred stock and common stock set forth in
our restated certificate of incorporation filed as Exhibit 3.1 to our Annual
Report on Form 10-K for the year ended December 31, 1996.
(d) The description of our Series A Participating Cumulative Preferred
Stock Purchase Rights filed as Item 1 to Amendment No. 2 to our Registration
Statement on Form 8-A/A filed on April 19, 1999.
You may request a copy of these filings, at no cost, by writing to or
telephoning us at the following address:
Corporate Secretary
Murphy Oil Corporation
P.O. Box 7000
EL Dorado, Arkansas 71731-7000
(870) 862-6411
You should rely only on the information incorporated by reference or
provided in this prospectus or the prospectus supplement. We have authorized no
one to provide you with different information. We are not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or the prospectus supplement is
accurate as of any date other than the date on the front of the document.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our ratio of earnings to fixed charges and
ratio of earnings before special items to fixed charges:
Three Months
Ended March 31 Year Ended December 31,
--------------- ------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------ ------ ------ ------ ------ ------ ------
Ratio of earnings to fixed charges........... -- 5.8x 0.4x 13.9x 14.3x -- 8.9x
Ratio of earnings before special items to
fixed charges.............................. -- 5.8x 4.3x 14.2x 12.3x 3.3x 7.5x
The ratio of earnings to fixed charges is computed by dividing earnings by
fixed charges. For this purpose "earnings" consist of income from continuing
operations before income taxes adjusted for (a) fixed charges, (b) undistributed
earnings of companies accounted for by the equity method, (c) capitalized
interest, and (d) amortization of capitalized interest. "Fixed charges" consist
of interest and amortization of debt discount and expense, whether capitalized
or expensed, and that portion of rental expense determined to be representative
of the interest factor. The computation of earnings as described in this
paragraph was less than fixed charges by $11,703,000, $13,726,000 and
$141,519,000 for the three months ended March 31, 1999 and years ended December
31, 1998 and 1995, respectively.
For the ratio of earnings before special items to fixed charges, special
items before income taxes are excluded from the computation of earnings. Special
items (material nonrecurring items) generally consisted of asset impairments,
gains on asset sales, refunds and settlements of income tax matters,
modifications of various oil and gas contracts, inventory write-downs,
restructuring charges, and settlement of legal matters. Special items increased
(reduced) net income for the three months ended March 31, 1999 and 1998 and the
years ended December 31, 1998, 1997, 1996, 1995 and 1994 by $(953,000), $0,
$(57,935,000), $68,000, $22,124,000, $(152,066,000), and $20,236,000,
respectively. More information about special items is given in "Management's
Discussion and Analysis of Financial Condition and Results of Operations"
beginning on page 8 of our quarterly report on Form 10-Q for the quarter ended
March 31, 1999 and on page 8 in Item 7 of our annual report on Form 10-K for the
year ended December 31, 1998.
2
The computation of earnings before special items as described in this paragraph
was less than fixed charges by $10,190,000 for the three months ended March 31,
1999.
Since we did not have any preferred stock outstanding in any of the above
periods, our ratio of earnings to fixed charges and preferred stock dividends is
the same as our ratio of earnings to fixed charges.
USE OF PROCEEDS
We will use the net proceeds we receive from the sale of the securities
offered by this prospectus and any accompanying prospectus supplement for
general corporate purposes, unless we specify otherwise in the applicable
prospectus supplement. General corporate purposes may include additions to
working capital, capital expenditures, repayment of debt or the financing of
possible acquisitions.
DESCRIPTION OF COMMON STOCK
As of the date of this prospectus, we are authorized to issue up to
80,000,000 shares of common stock. As of March 31, 1999, we had issued
48,775,314 shares of common stock, including 3,816,548 shares of common stock in
treasury. In addition, at March 31, 1999 options to purchase 1,371,839 shares of
common stock were outstanding under our various stock and compensation incentive
plans. The outstanding shares of our common stock are fully paid and
nonassessable. The holders of our common stock are not entitled to preemptive or
redemption rights. Shares of common stock are not convertible into shares of any
other class of capital stock. Harris Trust and Savings Bank is the transfer
agent and registrar for our common stock.
Dividends
The holders of our common stock are entitled to receive dividends when, as
and if declared by the board of directors of Murphy Oil, out of funds legally
available for their payment subject to the rights of holders of any outstanding
preferred stock.
Voting Rights
The holders of our common stock are entitled to one vote per share on all
matters submitted to a vote of stockholders.
Rights upon Liquidation
In the event of our voluntary or involuntary liquidation, dissolution or
winding up, the holders of our common stock will be entitled to share equally in
any of our assets available for distribution after the payment in full of all
debts and distributions and after the holders of all series of outstanding
preferred stock have received their liquidation preferences in full.
DESCRIPTION OF PREFERRED STOCK
Our restated certificate of incorporation authorizes the board of
directors of Murphy Oil, without further stockholder action, to provide for the
issuance of up to 400,000 shares of preferred stock, in one or more series, and
to fix the designations, terms, and relative rights and preferences, including
the dividend rate, voting rights, conversion rights, redemption and sinking fund
provisions and liquidation values of each of these series. We may further amend
from time to time our certificate of incorporation to increase the number of
authorized shares of preferred stock. An amendment would require the approval of
the holders of a majority of the outstanding shares of our preferred stock. As
of the date of this prospectus, we have not issued any preferred stock.
3
The particular terms of any series of preferred stock that we offer with
this prospectus will be described in the prospectus supplement relating to that
series of preferred stock. Those terms may include:
-- the number of shares of preferred stock offered;
-- the title and liquidation preference per share of the preferred
stock;
-- the purchase price of the preferred stock;
-- the dividend rate (or method of calculation), the dates on which
dividends will be paid and the date from which dividends will begin
to accumulate;
-- any purchase, retirement, redemption or sinking fund provisions of
the preferred stock;
-- any conversion or exchange provisions of the preferred stock;
-- any limitations or restrictions on any class of stock ranking on
parity with or junior to the preferred stock;
-- any conditions or restrictions on the creation of debt or the issue
of additional stock ranking on parity with or junior to the preferred
stock;
-- the voting rights, if any, of the preferred stock; and
-- any additional dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations and restrictions
of the preferred stock.
If the terms of any series of preferred stock being offered differ from
the terms set forth in this prospectus, we will disclose those terms in the
prospectus supplement relating to that series of preferred stock. You should
also refer to the certificate of designation establishing a particular series of
preferred stock that will be filed with the Secretary of State of the State of
Delaware and the SEC in connection with any offering of preferred stock.
The preferred stock will, when issued, be fully paid and nonassessable.
Dividend Rights
The preferred stock will be preferred over our common stock as to payment
of dividends. Before we declare and set apart for payment or pay any dividends
or distributions (other than dividends or distributions payable in common stock)
on our common stock, the holders of shares of each series of preferred stock
will be entitled to receive dividends when, as and if declared by our board of
directors. We will pay those dividends either in cash, shares of common stock or
preferred stock or otherwise, at the rate and on the date or dates set forth in
the prospectus supplement. With respect to each series of preferred stock, the
dividends on each share of the series will be cumulative from the date of issue
of the share unless some other date is set forth in the prospectus supplement
relating to the series. Accruals of dividends will not bear interest.
Rights upon Liquidation
The preferred stock will be preferred over the common stock as to asset
distributions so that the holders of each series of preferred stock will be
entitled to be paid, upon our voluntary or involuntary liquidation, dissolution
or winding up and before any distribution is made to the holders of common
stock, the liquidation preference per share plus the amount of accumulated
dividends and, in the event of a voluntary liquidation, any premium, as set
forth in the applicable prospectus supplement. However, in this case the holders
of preferred stock will not be entitled to any other or further payment. If upon
any liquidation, dissolution or winding up our net assets are insufficient to
permit the
4
payment in full of the respective amounts to which the holders of all
outstanding preferred stock are entitled, our entire remaining net assets will
be distributed among the holders of each series of preferred stock in amounts
proportional to the full amounts to which the holders of each series are
entitled.
Redemption
All shares of any series of preferred stock will be redeemable to the
extent set forth in the prospectus supplement relating to the series. All shares
of any series of preferred stock will be convertible into shares of common stock
or into shares of any other series of preferred stock to the extent set forth in
the applicable prospectus supplement.
Preferred Stock Purchase Rights
On December 6, 1989, we entered into a rights agreement with the Harris
Trust Company of New York, as rights agent, providing for a dividend of one
preferred stock purchase right for each outstanding share of our common stock,
and have subsequently amended this rights agreement on April 6, 1998 and April
15, 1999. We issued the dividend to stockholders of record on December 20, 1989,
and shares of common stock issued since that date are issued with rights. The
rights trade automatically with shares of common stock and become exercisable
only under the circumstances described below. The rights are designed to protect
the interests of Murphy Oil and our stockholders against coercive takeover
tactics. The purpose of the rights is to encourage potential acquirers to
negotiate with the board of directors of Murphy Oil prior to attempting a
takeover and to provide the board with leverage in negotiating on behalf of all
stockholders the terms of any proposed takeover. The rights may have
anti-takeover effects. The rights should not, however, interfere with any merger
or other business combination approved by the board of directors of Murphy Oil.
Until a right is exercised, the right will not entitle the holder to
additional rights as a Murphy Oil stockholder, including, without limitation,
the right to vote or to receive dividends. Upon becoming exercisable, each right
will entitle its holder to purchase from us one one-thousandth of a share of
Series A Participating Cumulative Preferred Stock at an exercise or purchase
price of $200.00 per right, subject to adjustment. Each one one-thousandth of a
share of Series A Participating Cumulative Preferred Stock entitles the holder
to the same dividend and voting rights as one share of our common stock.
In general, the rights will not be exercisable until the earlier of (a)
the close of business on the 10th day after we learn that a person or group has
acquired beneficial ownership of 15% or more of our outstanding common stock,
unless provisions addressing accidental triggering of the rights or acquisitions
by specified exempt persons apply, and (b) the close of business on the 10th
day, or such other day as designated in advance by the board of directors of
Murphy Oil, after the commencement of a tender or exchange offer for 15% or more
of our outstanding common stock. Below we refer to the person or group acquiring
at least 15% of our common stock as an "acquiring person." In the event that
someone becomes an acquiring person and the rights become exercisable, each
right will entitle its holder to purchase, for the exercise price, the number of
common shares of Murphy Oil having, at the time of the transaction, a market
value of twice the exercise price. In the event that someone becomes an
acquiring person, the rights become exercisable and either (a) we are involved
in a merger or other business combination in which we are not the surviving
corporation or our common stock is converted into other securities or assets or
(b) 50% or more of our consolidated assets or earning power are sold, each right
will entitle its holder to purchase, for the exercise price, the number of
common shares of the other party to such merger, business combination or sale
having, at the time of the transaction, a market value of twice the exercise
price of the right.
Any rights that are at any time beneficially owned by an acquiring person,
or any associate or affiliate of the acquiring person, will be null and void and
nontransferable, and any holder of such right, including any purported
transferee or subsequent holder, will be unable to exercise or transfer the
right.
The rights will expire at the close of business on April 6, 2008, unless
redeemed before that time. At any time prior to the earlier of (a) the date that
a person or group has become an acquiring person and (b) the expiration date,
the board
5
of directors of Murphy Oil may redeem the rights in whole, but not in part, at a
price of $.01 per right. For so long as the rights are redeemable, the rights
agreement may be amended in any respect without the approval of the rights
holders.
You should refer to the applicable provisions of the rights agreement,
which is incorporated by reference to Exhibits 1 and 2 to Form 8-A, dated
December 12, 1989, File No. 1-8590, and of amendments 1 and 2 incorporated by
reference to Exhibit 3 to Form 8-A/A, dated April 14, 1998, and Exhibit 4 to
Form 8-A/A, dated April 19, 1999, respectively.
Other Provisions of Murphy Oil's Restated Certificate of Incorporation
In the event of a proposed merger or tender offer, proxy contest or other
attempt to gain control of Murphy Oil which is not approved by the board of
directors of Murphy Oil, the board of directors of Murphy Oil may authorize the
issuance of one or more series of preferred stock, in addition to the Series A
Participating Cumulative Preferred Stock discussed above under "Preferred Stock
Purchase Rights," with voting rights or other rights and preferences which could
impede the success of the proposed merger, tender offer, proxy contest or other
attempt to gain control of Murphy Oil. While the ability of the board of
directors of Murphy Oil to do this may be limited by applicable law, our
restated certificate of incorporation and the applicable rules of the stock
exchanges upon which our common stock is listed, the consent of the holders of
common stock would not be required for any issuance of preferred stock in such a
situation.
DESCRIPTION OF DEPOSITARY SHARES
We may, at our option, elect to offer fractional shares of preferred
stock, rather than full shares of preferred stock. If we exercise this option,
we will issue to the public receipts for depositary shares, and each of these
depositary shares will represent a fraction, as set forth in the applicable
prospectus supplement, of a share of a particular series of preferred stock.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a deposit agreement between us and a bank or
trust company selected by us. The depositary will have its principal office in
the United States and a combined capital and surplus of at least $50,000,000.
Subject to the terms of the deposit agreement, each owner of a depositary
share will be entitled, in proportion to the applicable fraction of a share of
preferred stock underlying that depositary share, to all the rights and
preferences of the preferred stock underlying that depositary share. Those
rights include dividend, voting, redemption and liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Depositary receipts will be distributed to
those persons purchasing the fractional shares of preferred stock underlying the
depositary shares, in accordance with the terms of the offering. Copies of the
deposit agreement and depositary receipt will be filed with the SEC in
connection with the offering of specific depositary shares.
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record holders
of depositary shares relating to the preferred stock in proportion to the number
of depositary shares owned by those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
that are entitled to receive the distribution, unless the depositary determines
that it is not
6
feasible to make the distribution. If this occurs, the depositary may, with our
approval, sell the property and distribute the net proceeds from the sale to the
applicable holders.
Redemption of Depositary Shares
If a series of preferred stock represented by depositary shares is subject
to redemption, the depositary shares will be redeemed from the proceeds received
by the depositary resulting from the redemption, in whole or in part, of that
series of preferred stock held by the depositary. The redemption price per
depositary share will be equal to the applicable fraction of the redemption
price per share payable with respect to that series of the preferred stock.
Whenever we redeem shares of preferred stock that are held by the
depositary, the depositary will redeem, as of the same redemption date, the
number of depositary shares representing the shares of preferred stock so
redeemed. If fewer than all the depositary shares are to be redeemed, the
depositary will select the depositary shares to be redeemed by lot or pro rata,
as the depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the
preferred stock are entitled to vote, the depositary will mail the information
contained in the notice to the record holders of the depositary shares
underlying the preferred stock. Each record holder of the depositary shares on
the record date (which will be the same date as the record date for the
preferred stock) will be entitled to instruct the depositary as to the exercise
of the voting rights pertaining to the amount of the preferred stock represented
by the holder's depositary shares. The depositary will then try, as far as
practicable, to vote the number of shares of preferred stock underlying those
depositary shares in accordance with these instructions, and we agree to take
all actions deemed necessary by the depositary to enable the depositary to do
so. The depositary will not vote the shares of preferred stock to the extent it
does not receive specific instructions from the holders of depositary shares
underlying the preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may at any time be amended by agreement
between us and the depositary. However, any amendment which materially and
adversely alters the rights of the holders of depositary shares will not be
effective unless the holders of at least a majority of the depositary shares
then outstanding approve the amendment. We or the depositary may terminate the
deposit agreement only if (a) all outstanding depositary shares have been
redeemed or (b) there has been a final distribution of the underlying preferred
stock in connection with our liquidation, dissolution or winding up and the
preferred stock has been distributed to the holders of depositary receipts.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of the depositary arrangements. We will also pay
charges of the depositary in connection with the initial deposit of the
preferred stock and any redemption of the preferred stock. Holders of depositary
receipts will pay other transfer and other taxes and governmental charges and
those other charges, including a fee for the withdrawal of shares of preferred
stock upon surrender of depositary receipts, as are expressly provided in the
deposit agreement to be for their accounts.
Miscellaneous
The depositary will forward to holders of depositary receipts all reports
and communications from us that we deliver to the depositary and that we are
required to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable if either of us is prevented
or delayed by law or any circumstance beyond our control in performing our
respective obligations under the deposit agreement. Our obligations and those
7
of the depositary will be limited to performance in good faith of our respective
duties under the deposit agreement. Neither we nor they will be obligated to
prosecute or defend any legal proceeding in respect of any depositary shares or
preferred stock unless satisfactory indemnity is furnished. We and the
depositary may rely upon written advice of counsel or accountants, or upon
information provided by persons presenting preferred stock for deposit, holders
of depositary receipts or other persons believed to be competent and on
documents believed to be genuine.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us of its
election to resign. We may remove the depositary at any time. Any resignation or
removal will take effect upon the appointment of a successor depositary and its
acceptance of the appointment. We must appoint the successor depositary within
60 days after delivery of the notice of resignation or removal and it must be a
bank or trust company having its principal office in the United States and
having a combined capital and surplus of at least $50,000,000.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth the general terms and provisions that
could apply to the debt securities. The debt securities will be either senior
securities or subordinated securities of Murphy Oil. Each prospectus supplement
will state the particular terms that actually will apply to the debt securities
included in the supplement.
In addition to the following summary, you should refer to the applicable
provisions of the following documents for more detailed information:
-- the senior indenture, a form of which has been filed as an exhibit to
the registration statement of which this prospectus is a part, and
-- the subordinated indenture, a form of which has been filed as an
exhibit to the registration statement of which this prospectus is a
part.
Neither indenture limits the aggregate principal amount of debt securities
that we may issue under that indenture. We may authorize the issuance of the
debt securities in one or more series at various times. All debt securities will
be unsecured. The senior securities will have the same rank as all of our other
unsecured and unsubordinated debt. The subordinated securities will be
subordinated to senior indebtedness as described under "Subordinated Securities"
in this prospectus. The prospectus supplement relating to the particular series
of debt securities being offered will specify the amounts, prices and terms of
those debt securities. These terms may include:
-- whether the debt securities are senior securities or subordinated
securities;
-- the title and the limit on the aggregate principal amount of the debt
securities;
-- the maturity date or dates;
-- the interest rate (which may be fixed or variable), or the method of
determining any interest rates, at which the debt securities may bear
interest;
-- the dates from which interest shall accrue and the dates on which
interest will be payable;
-- the currencies in which the debt securities are denominated and
principal and interest may be payable;
-- any redemption or sinking fund terms;
8
-- any event of default or covenant with respect to the debt securities
of a particular series, if not set forth in this prospectus;
-- whether the debt securities are to be issued, in whole or in part, in
the form of one or more global securities and the depositary for the
global securities;
-- whether the debt securities would be convertible into our common
stock; and
-- any other terms of the series, which will not conflict with the terms
of the applicable indenture.
We may issue debt securities of any series at various times and we may
reopen any series for further issuances from time to time without notice to
existing holders.
We will issue the debt securities in fully registered form without
coupons. Unless we specify otherwise in the applicable prospectus supplement, we
will issue debt securities denominated in U.S. dollars in denominations of
$1,000 or multiples of $1,000.
We will describe special Federal income tax and other considerations
relating to debt securities denominated in foreign currencies and "original
issue discount" debt securities (debt securities issued at a substantial
discount below their principal amount because they pay no interest or pay
interest that is below market rates at the time of issuance) in the applicable
prospectus supplement.
Unless we specify otherwise in the applicable prospectus supplement, the
covenants contained in the indentures and the debt securities will not provide
special protection to holders of debt securities if we enter into a highly
leveraged transaction, recapitalization or restructuring.
Exchange, Registration and Transfer
You may exchange debt securities of any series that are not global
securities for other debt securities of the same series and of like aggregate
principal amount and tenor in different authorized denominations. In addition,
you may present debt securities for registration of transfer, together with a
duly executed form of transfer, at the office of the security registrar or at
the office of any transfer agent designated by us for that purpose with respect
to any series of debt securities and referred to in the applicable prospectus
supplement. No service charge is required for any transfer or exchange of debt
securities but we may require payment of any taxes and other governmental
charges. The security registrar or the transfer agent will effect the transfer
or exchange upon being satisfied with the documents of title and identity of the
person making the request. We have appointed the applicable trustee as security
registrar for the applicable indenture. We may at any time designate additional
transfer agents with respect to any series of debt securities.
In the event of any redemption in part, we will not be required to:
-- issue, register the transfer of or exchange debt securities of any
series during a period beginning at the opening of business 30 days
before the mailing of notice of redemption of debt securities of that
series to be redeemed and ending at the close of business on the
mailing date;
-- register the transfer of or exchange any debt security, or portion
thereof, called for redemption, except the unredeemed portion of any
registered security being redeemed in part.
For a discussion of restriction on the exchange, registration and transfer
of global securities, see "Global Securities."
9
Payment and Paying Agents
Unless we specify otherwise in the applicable prospectus supplement,
payment of principal, any premium and any interest on debt securities will be
made at the offices of the paying agents that we designate at various times.
However, at our option, we may make interest payments by check mailed to
the address, as it appears in the security register, of the person entitled to
the payments. Unless we specify otherwise in the applicable prospectus
supplement, we will make payment of any installment of interest on debt
securities to the person in whose name that registered security is registered at
the close of business on the regular record date for such interest.
We will specify in the applicable prospectus supplement, the agency which
will be designated as our paying agent for payments with respect to debt
securities.
Global Securities
The debt securities of a series may be issued in whole or in part in the
form of one or more global certificates that we will deposit with a depositary
identified in the applicable prospectus supplement. Unless and until it is
exchanged in whole or in part for the individual debt securities it represents,
a global security may not be transferred except as a whole:
-- by the applicable depositary to a nominee of the depositary,
-- by any nominee to the depositary itself or another nominee, or
-- by the depositary or any nominee to a successor depositary or any
nominee of the successor.
We will describe the specific terms of the depositary arrangement with
respect to a series of debt securities in the applicable prospectus supplement.
We anticipate that the following provisions will generally apply to
depositary arrangements.
When we issue a global security in registered form, the depositary for the
global security or its nominee will credit, on its book-entry registration and
transfer system, the respective principal amounts of the individual debt
securities represented by that global security to the accounts of persons that
have accounts with the depositary ("participants").
Those accounts will be designated by the dealers, underwriters or agents
with respect to the underlying debt securities or by us if those debt securities
are offered and sold directly by us. Ownership of beneficial interests in a
global security will be limited to participants or persons that may hold
interests through participants. For interests of participants, ownership of
beneficial interests in the global security will be shown on records maintained
by the applicable depositary or its nominee. For interests of persons other than
participants, that ownership information will be shown on the records of
participants. Transfer of that ownership will be effected only through those
records. The laws of some states require that certain purchasers of securities
take physical delivery of securities in definitive form. These limits and laws
may impair the ability to transfer beneficial interests in a global security.
As long as the depositary for a global security, or its nominee, is the
registered owner of that global security, the depositary or nominee will be
considered the sole owner or holder of the debt securities represented by the
global security for all purposes under the applicable indenture. Except as
provided below, owners of beneficial interests in a global security:
-- will not be entitled to have any of the underlying debt securities
registered in their names,
10
-- will not receive or be entitled to receive physical delivery of any of
the underlying debt securities in definitive form, and
-- will not be considered the owners or holders under the indenture
relating to those debt securities.
Payments of principal of, any premium on and any interest on individual
debt securities represented by a global security registered in the name of a
depositary or its nominee will be made to the depositary or its nominee as the
registered owner of the global security representing such debt securities.
Neither we, the trustee for the debt securities, any paying agent nor the
registrar for the debt securities will be responsible for any aspect of the
records relating to or payments made by the depositary or any participants on
account of beneficial interests in the global security.
We expect that the depositary or its nominee, upon receipt of any payment
of principal, any premium or interest relating to a global security representing
any series of debt securities, immediately will credit participants' accounts
with the payments. Those payments will be credited in amounts proportional to
the respective beneficial interests of the participants in the principal amount
of the global security as shown on the records of the depositary or its nominee.
We also expect that payments by participants to owners of beneficial
interests in the global security held through those participants will be
governed by standing instructions and customary practices. This is now the case
with securities held for the accounts of customers registered in "street name."
Those payments will be the sole responsibility of those participants.
If the depositary for a series of debt securities is at any time
unwilling, unable or ineligible to continue as depositary and we do not appoint
a successor depositary within 90 days, we will issue individual debt securities
of that series in exchange for the global security or securities representing
that series. In addition, we may at any time in our sole discretion determine
not to have any debt securities of a series represented by one or more global
securities. In that event, we will issue individual debt securities of that
series in exchange for the global security or securities. Further, if we
specify, an owner of a beneficial interest in a global security may, on terms
acceptable to us, the trustee and the applicable depositary, receive individual
debt securities of that series in exchange for those beneficial interests. The
foregoing is subject to any limitations described in the applicable prospectus
supplement. In any such instance, the owner of the beneficial interest will be
entitled to physical delivery of individual debt securities equal in principal
amount to the beneficial interest and to have the debt securities registered in
its name. Those individual debt securities will be issued in any authorized
denominations.
Modification of the Indentures
Under each indenture our rights and obligations and the rights of the
holders may be modified with our consent and the consents of the trustee under
that indenture and the holders of at least a majority in principal amount of the
then outstanding debt securities of each series affected by the modification.
However, the consent of each affected holder is needed to:
-- extend the maturity, reduce the interest rate or extend the payment
schedule of any of the debt securities;
-- reduce the principal amount or any amount payable on redemption of any
debt security;
-- reduce the amount of principal of an original issue discount security
payable upon acceleration of maturity or in bankruptcy;
-- change the conversion provisions of either indenture in a manner
adverse to the holders;
11
-- change the subordination provisions of the subordinated indenture in a
manner adverse to the holders of subordinated debt;
-- reduce the percentage required for modifications or waivers of
compliance with the indentures; or
-- impair the right of repayment at the holder's option or the right of a
holder to institute suit for repayment on or with respect to any debt
security.
In addition, the subordinated provisions of the subordinated indenture
cannot be modified to the detriment of any of our senior indebtedness without
the consent of the holders of the senior indebtedness.
Any actions we or the trustee may take toward adding to our covenants,
adding events of default or establishing the structure or terms of the debt
securities as permitted by the indentures will not require the approval of any
holder of debt securities. In addition, we or the trustee may cure ambiguities
or inconsistencies in the indentures or make other provisions without the
approval of any holder as long as no holder's interests are materially and
adversely affected.
Events of Default, Notice and Waiver
"Event of Default", when used in an indenture, will mean any of the
following in relation to a series of debt securities:
-- failure to pay interest on any debt security for 30 days after the
interest becomes due;
-- failure to pay the principal on any debt security when due;
-- failure to deposit any sinking fund payment after such payment becomes
due;
-- failure to perform or breach of any other covenant or warranty in the
indenture or any debt security that continues for 90 days after our
being given notice from the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of the
affected series;
-- default in the payment when due of (a) other indebtedness in an
aggregate principal amount in excess of $25,000,000 and such default
is not cured within 30 days after written notice to us and the trustee
by the holders of at least 25% in principal amount of the outstanding
debt securities of the series and (b) interest, principal, premium or
a sinking fund or redemption payment under any such other
indebtedness, causing the indebtedness to become due prior to its
stated maturity, which acceleration is not stayed, rescinded or
annulled within 10 days after written notice to us and the trustee by
the holders of at least 25% in principal amount of the outstanding
debt securities of the series;
-- a creditor commences involuntary bankruptcy, insolvency or similar
proceedings against us and we are unable to obtain a stay or dismissal
of that proceeding within 60 days;
-- we voluntarily seek relief under bankruptcy, insolvency or similar
laws or we consent to a court entering an order for relief against us
under those laws; or
-- any other event of default provided for debt securities of that
series.
If any event of default relating to outstanding debt securities of any
series occurs and is continuing, either the trustee or the holders of at least
25% in principal amount of the outstanding debt securities of that series may
declare the principal and accrued interest of all of the outstanding debt
securities of such series to be due and immediately payable.
12
The indentures provide that the holders of at least a majority in
principal amount of the outstanding debt securities of any series may direct the
time, method and place of conducting any proceeding for any remedy available to
the trustee, or of exercising any trust or power conferred on the trustee, with
respect to the debt securities of that series. The trustee may act in any way
that is consistent with those directions and may decline to act if any of the
directions is contrary to law or to the indentures or would involve the trustee
in personal liability.
The indentures provide that the holders of at least a majority in
principal amount of the outstanding debt securities of any series may on behalf
of the holders of all of the outstanding debt securities of the series waive any
past default (and its consequences) under the indentures relating to the series,
except a default (a) in the payment of the principal of, interest on or sinking
fund installment of any of the debt securities of the series, (b) with respect
to voluntary or involuntary bankruptcy, insolvency or similar proceedings, or
(c) with respect to a covenant or provision of such indentures which, under the
terms of such indentures, cannot be modified or amended without the consent of
the holders of all of the outstanding debt securities of the series affected. In
the case of clause (b) above, the holders of at least a majority of all
outstanding debt securities (voting as one class) may on behalf of all holders
waive a default.
The indentures contain provisions entitling the trustee, subject to the
duty of the trustee during an event of default to act with the required standard
of care, to be indemnified by the holders of the debt securities of the relevant
series before proceeding to exercise any right or power under the indentures at
the request of those holders.
The indentures require the trustee to, within 90 days after the occurrence
of a default known to it with respect to any series of outstanding debt
securities, give the holders of that series notice of the default if uncured and
unwaived. However, the trustee may withhold this notice if it in good faith
determines that the withholding of this notice is in the interest of those
holders. However, the trustee may not withhold this notice in the case of a
default in payment of principal of, interest on or sinking fund installment with
respect to any debt securities of the series. The term "default" for the purpose
of this provision means any event that is, or after notice or lapse of time, or
both, would become, an event of default with respect to the debt securities of
that series.
Each indenture requires us to file annually with the trustee a
certificate, executed by our officers, indicating whether any of the officers
has knowledge of any default under the indenture.
Replacement of Securities
We will replace any mutilated debt security at the expense of the holder,
if we so choose, upon surrender of the mutilated debt security to the
appropriate trustee. We will replace debt securities that are destroyed, stolen
or lost at the expense of the holder upon delivery to the appropriate trustee of
evidence of the destruction, loss or theft of the debt securities satisfactory
to us and to the trustee. In the case of a destroyed, lost or stolen debt
security, an indemnity satisfactory to the appropriate trustee and us may be
required at the expense of the holder of the debt security before a replacement
debt security will be issued.
Defeasance
The indentures contain a provision that permits us to elect to defease and
be discharged from all of our obligations (subject to limited exceptions) with
respect to any series of debt securities then outstanding provided the following
conditions, among others, have been satisfied:
-- we have deposited in trust with the trustee (a) money, (b) U.S.
government obligations, or (c) a combination thereof, in each case, in
an amount sufficient to pay and discharge the principal of and
interest on the outstanding debt securities of any series;
-- no event of default has occurred or is continuing with respect to the
securities of any series being defeased;
13
-- defeasance will not result in a breach or violation of, or constitute
a default under any agreement to which we are a party or by which we
are bound; and
-- we have delivered to the trustee (a) an officers' certificate and an
opinion of counsel that all conditions precedent relating to the
defeasance have been complied with and (b) an opinion of counsel that
the holders will not recognize income, gain or loss for Federal income
tax purposes.
Governing Law
The indentures and the debt securities will be governed by, and construed
in accordance with, the laws of the State of New York.
The Trustee
We will specify the name of the trustee for each issue of debt securities
in the applicable prospectus supplement.
Senior Securities
Limitations on Liens. Neither we nor any restricted subsidiary will issue,
assume or guarantee any debt secured by a mortgage, lien, pledge or other
encumbrance, which are collectively called "mortgages" in the indenture, on any
principal property or on any debt or capital stock of any restricted subsidiary
which owns any principal property without providing that the senior securities
will be secured equally and ratably or prior to the debt. A "restricted
subsidiary" is a 50% or more owned subsidiary owning principal property and
having stockholder's equity greater than 2% of our consolidated net assets.
"Principal property" is all property and equipment directly engaged in our
exploration, production, refining, marketing and transportation activities.
"Consolidated net assets" means the total of all assets of Murphy Oil, excluding
intangible assets (other than goodwill), treasury stock carried as an asset or
write-ups of non- acquisition-related capital assets, less depreciation,
amortization and other similar reserves, less the total of all liabilities,
deferred credits, minority shareholders' interests in subsidiaries, reserves and
other similar items of Murphy Oil, excluding certain acquisition-related debt or
stockholders' equity, as calculated on our consolidated balance sheet.
However, the limitation on liens shall not apply to the following:
-- mortgages existing on the date of the senior indenture;
-- mortgages existing at the time an entity becomes a restricted
subsidiary of ours;
-- mortgages securing debt of a restricted subsidiary in favor of Murphy
Oil or any subsidiary of ours;
-- mortgages on property, shares of stock or indebtedness (a) existing at
the time of the acquisition of the property, shares of stock or
indebtedness, (b) to secure payment of all or part of the purchase
price of the property, shares of stock or indebtedness, or (c) to
secure debt incurred prior to, at the time of or within 120 days after
the acquisition of the property, shares of stock or indebtedness or
after the completion of construction of the property, for the purpose
of financing all or part of the purchase price of the property, shares
of stock or indebtedness or the cost of construction;
-- mortgages in favor of the United States of America, any state, any
other country or any political subdivision required by contract or
statute;
-- mortgages on property of Murphy Oil or any restricted subsidiary
securing all or part of the cost of operating, constructing or
acquiring projects, as long as recourse is only to the property;
14
-- specific marine mortgages or foreign equivalents on property or assets
of Murphy Oil or any restricted subsidiary;
-- mortgages or easements on property of Murphy Oil or any restricted
subsidiary incurred to finance the property on a tax-exempt basis that
do not materially detract from the value of or materially impair the
use of the property or assets; or
-- any extension, renewal or replacement of any mortgage referred to in
the preceding items or of any debt secured by those mortgages as long
as the extension, renewal or replacement secures the same or a lesser
amount of debt and is limited to substantially the same property (plus
improvements) which secured the mortgage.
Notwithstanding anything mentioned above, we and any of our restricted
subsidiaries may issue, assume or guarantee debt secured by mortgages on
principal property or on any indebtedness or capital stock of any restricted
subsidiary (other than the debt secured by mortgages permitted above) which does
not exceed 10% of our consolidated net assets.
Limitations on Sale and Lease-Back Transactions. Neither we nor any
restricted subsidiary will lease any principal property for more than three
years from the purchaser or transferee of such principal property. However, the
limitation on this type of arrangement shall not apply if:
-- we or our restricted subsidiary could incur debt secured by a mortgage
on the property to be leased, as permitted above, without equally and
ratably securing the senior securities of any series; or
-- we apply the greater of the proceeds from the sale or transfer and the
fair value of the leased property to any senior acquisition-related
debt within 120 days of the sale and lease-back transaction, in both
cases less any amounts spent to purchase unencumbered principal
property during the one year prior to or 120 days after any sale and
lease-back transaction.
Subordinated Securities
Under the subordinated indenture, payment of the principal of, interest on
and any premium on the subordinated securities will generally be subordinated in
right of payment to the prior payment in full of all of our senior indebtedness.
"Senior indebtedness" is defined as the principal of, any premium and
accrued and unpaid interest on the following items, whether outstanding on or
created, incurred or assumed after the date of execution of the subordinated
indenture:
-- our indebtedness for money borrowed (other than the subordinated
securities);
-- our guarantees of indebtedness for money borrowed of any other person;
and
-- indebtedness evidenced by notes, debentures, bonds or other
instruments of indebtedness for the payment of which we are
responsible or liable, by guarantees or otherwise.
Senior indebtedness also includes modifications, renewals, extensions and
refundings of any of the types of indebtedness, liabilities, obligations or
guarantees listed above, unless the relevant instrument states that the
indebtedness, liability, obligation or guarantee, or modification, renewal,
extension or refunding, is not senior in right of payment to the subordinated
securities.
We may not make any payment of principal of, interest on or any premium on
the subordinated securities except for sinking fund payments as described below
if:
15
-- any default or event of default with respect to any senior
indebtedness occurs and is continuing, or
-- any judicial proceeding is pending with respect to any default in
payment of senior indebtedness.
We may make sinking fund payments during a suspension of principal or
interest payments on subordinated debt if we make these sinking fund payments by
redeeming or acquiring securities prior to the default or by converting the
securities.
If any subordinated security is declared due and payable before its
specified date, or if we pay or distribute any assets to creditors upon our
dissolution, winding up, liquidation or reorganization, we must pay all
principal of, any premium and interest due or to become due on all senior
indebtedness in full before the holders of subordinated securities are entitled
to receive or take any payment. Subject to the payment in full of all senior
indebtedness, the holders of the subordinated securities are to be subrogated to
the rights of the holders of senior indebtedness to receive payments or
distribution of our assets applicable to senior indebtedness until the
subordinated securities are paid in full.
By reason of this subordination, in the event of insolvency, our creditors
who are holders of senior indebtedness, as well as some of our general
creditors, may recover more, ratably, than the holders of the subordinated
securities.
The subordinated indenture will not limit the amount of senior
indebtedness or debt securities which we may issue.
Conversion Rights
The prospectus supplement will provide if a series of securities is
convertible into our common stock and the initial conversion price per share at
which the securities may be converted.
If we have not redeemed a convertible security, the holder of the
convertible security may convert the security, or any portion of the principal
amount in integral multiples of $1,000, at the conversion price in effect at the
time of conversion, into shares of Murphy Oil common stock. Conversion rights
expire at the close of business on the date specified in the prospectus
supplement for a series of convertible securities. Conversion rights expire at
the close of business on the redemption date in the case of any convertible
securities that we call for redemption.
In order to exercise the conversion privilege, the holder of the
convertible security must surrender to us, at any office or agency maintained
for that purpose, the security with a written notice of the election to convert
the security, and, if the holder is converting less than the entire principal
amount of the security, the amount of security to be converted. In addition, if
the convertible security is converted during the period between a record date
for the payment of interest and the related interest payment date, the person
entitled to convert the security must pay us an amount equal to the interest
payable on the principal amount being converted.
We will not pay any interest on converted securities on any interest
payment date after the date of conversion except for those securities
surrendered during the period between a record date for the payment of interest
and the related interest payment date.
Convertible securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of the security. We will
not issue any fractional shares of stock upon conversion, but we will make an
adjustment in cash based on the market price at the close of business on the
date of conversion.
The conversion price will be subject to adjustment in the event of:
-- payment of stock dividends or other distributions on our common stock;
-- issuance of rights or warrants to all our stockholders entitling them
to subscribe for or purchase our stock at a price less than the market
price of our common stock;
16
-- the subdivision of our common stock into a greater or lesser number of
shares of stock;
-- the distribution to all stockholders of evidences of our indebtedness
or assets, excluding stock dividends or other distributions and rights
or warrants; or
-- the reclassification of our common stock into other securities.
We may also decrease the conversion price as we consider necessary so that any
event treated for Federal income tax purposes as a dividend of stock or stock
rights will not be taxable to the holders of our common stock.
We will pay any and all transfer taxes that may be payable in respect of
the issue or delivery of shares of common stock on conversion of the securities.
We are not required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares in a name other than that
of the holder of the security to be converted and no issue and delivery shall be
made unless and until the person requesting the issue has paid the amount of any
such tax or established to our satisfaction that such tax has been paid.
After the occurrence of:
-- consolidation with or merger of Murphy Oil into any other corporation,
-- any merger of another corporation into Murphy Oil, or
-- any sale or transfer of substantially all of the assets of Murphy Oil,
which results in any reclassification, change or conversion of our common stock,
the holders of any convertible securities will be entitled to receive on
conversion the kind and amount of shares of common stock or other securities,
cash or other property receivable upon such event by a holder of our common
stock immediately prior to the occurrence of the event.
DESCRIPTION OF WARRANTS
We may issue securities warrants for the purchase of debt securities,
preferred stock or common stock. Securities warrants may be issued independently
or together with debt securities, preferred stock or common stock and may be
attached to or separate from any offered securities. We will issue each series
of securities warrants under a separate warrant agreement to be entered into
between us and a bank or trust company, as warrant agent. The securities warrant
agent will act solely as our agent in connection with the securities warrants
and will not assume any obligation or relationship of agency or trust for or
with any registered holders of securities warrants or beneficial owners of
securities warrants. In addition to this summary, you should refer to the
securities warrant agreement, including the form of securities warrant
certificate, relating to the specific securities warrants being offered for the
complete terms of the securities warrant agreement and the securities warrants.
The securities warrant agreement, together with the terms of securities warrant
certificate and securities warrants, will be filed with the SEC in connection
with the offering of the specific securities warrants.
We will describe the particular terms of any issue of securities warrants
in the prospectus supplement relating to the issue. Those terms may include:
-- the designation, aggregate principal amount, currencies, denominations
and terms of the series of debt securities purchasable upon exercise
of securities warrants to purchase debt securities and the price at
which the debt securities may be purchased upon exercise;
-- the designation, number of shares, stated value and terms (including,
without limitation, liquidation, dividend, conversion and voting
rights) of the series of preferred stock purchasable upon exercise of
securities warrants
17
to purchase shares of preferred stock and the price at which such
number of shares of preferred stock of such series may be purchased
upon such exercise;
-- the number of shares of common stock purchasable upon the exercise of
securities warrants to purchase shares of common stock and the price
at which such number of shares of common stock may be purchased upon
such exercise;
-- the date on which the right to exercise the securities warrants will
commence and the date on which the right will expire;
-- the Federal income tax consequences applicable to the securities
warrants; and
-- any other terms of the securities warrant.
Securities warrants for the purchase of preferred stock and common stock
will be offered and exercisable for U.S. dollars only. Securities warrants will
be issued in registered form only. The exercise price for securities warrants
will be subject to adjustment in accordance with the applicable prospectus
supplement.
Each securities warrant will entitle its holder to purchase the principal
amount of debt securities or the number of shares of preferred stock or common
stock at the exercise price set forth in, or calculable as set forth in, the
applicable prospectus supplement. The exercise price may be adjusted upon the
occurrence of events as set forth in the prospectus supplement. After the close
of business on the expiration date, unexercised securities warrants will become
void. We will specify the place or places where, and the manner in which,
securities warrants may be exercised in the applicable prospectus supplement.
Prior to the exercise of any securities warrants to purchase debt
securities, preferred stock or common stock, holders of the securities warrants
will not have any of the rights of holders of the debt securities, preferred
stock or common stock purchasable upon exercise, including:
-- in the case of securities warrants for the purchase of debt
securities, the right to receive payments of principal of, any premium
or interest on the debt securities purchasable upon exercise or to
enforce covenants in the applicable indenture; or
-- in the case of securities warrants for the purchase of preferred stock
or common stock, the right to vote or to receive any payments of
dividends on the preferred stock or common stock purchasable upon
exercise.
PLAN OF DISTRIBUTION
We may sell the debt securities, preferred stock, depositary shares,
common stock or securities warrants (together referred to as the "offered
securities") (a) through underwriters or dealers; (b) directly to one or a
limited number of institutional purchasers; or (c) through agents. This
prospectus or the applicable prospectus supplement will set forth the terms of
the offering of any offered securities, including the name or names of any
underwriters, dealers or agents, the price of the offered securities and the net
proceeds to us from such sale, any underwriting commissions or other items
constituting underwriters' compensation.
If underwriters are used in the sale, the offered securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The offered securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
investment banking firms or others, as designated. Unless otherwise set forth in
the applicable prospectus supplement, the obligations of the underwriters or
agents to purchase the offered securities will be subject to conditions
precedent and the underwriters will be obligated to purchase all the offered
securities if any are purchased. Any initial public offering
18
price and any underwriting commissions or other items constituting underwriters'
compensation may be changed from time to time.
If a dealer is utilized in the sale of any offered securities, we will
sell those offered securities to the dealer, as principal. The dealer may then
resell the offered securities to the public at varying prices to be determined
by the dealer at the time of resale.
We may sell offered securities directly to one or more institutional
purchasers, or through agents at a fixed price or prices, which may be changed,
or at varying prices determined at time of sale. Unless otherwise indicated in
the prospectus supplement, any agent will be acting on a best effort basis for
the period of its appointment.
If an applicable prospectus supplement indicates, we will authorize
agents, underwriters or dealers to solicit offers by specified institutions to
purchase offered securities from us at the public offering price set forth in
the prospectus supplement under delayed delivery contracts providing for payment
and delivery on a specified date in the future. These contracts will be subject
only to those conditions set forth in the prospectus supplement, and the
prospectus supplement will set forth the commission payable for solicitation of
the contracts.
Under agreements entered into with us, agents and underwriters who
participate in the distribution of the offered securities may be entitled to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act of 1933, or to contribution with respect to payments
which the agents or underwriters may be required to make. Agents and
underwriters may be customers of, engage in transactions with, or perform
services for us in the ordinary course of business.
LEGAL MATTERS
The validity of the offered securities will be passed upon for us by
Davis Polk & Wardwell, New York, New York, and for any underwriters, dealers or
agents by counsel which we will name in the applicable prospectus supplement.
EXPERTS
Our consolidated financial statements as of December 31, 1998 and 1997 and
for each of the years in the three-year period ended December 31, 1998
incorporated by reference in the registration statement have been incorporated
in this prospectus in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference in this prospectus, and
upon their authority as experts in accounting and auditing.
19
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
The estimated expenses which will be paid by Murphy Oil are as follows:
SEC Registration Fee............................................... $ 278,000
--------
Accounting Fees and Expenses.......................................
Blue Sky Fees and Expenses.........................................
Legal Fees and Expenses............................................
Printing and Engraving.............................................
Fees and Expenses of Trustees and Counsel..........................
Rating Agency Fees.................................................
Miscellaneous......................................................
--------
TOTAL......................................................... $
========
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides for
indemnification of officers and directors under certain conditions.
Article VIII of the By-Laws of Murphy Oil provides for indemnification of
officers and directors to the fullest extent which may be provided by a by-law
under applicable law.
Murphy Oil maintains insurance for its officers and directors against
certain liabilities, including liabilities under the Securities Act of 1933,
under insurance policies, the premiums of which are paid by Murphy Oil. The
effect of these is to indemnify any officer or director of Murphy Oil against
expenses, judgments, attorney's fees and other amounts paid in settlements
incurred by an officer or director upon a determination that such person acted
in good faith.
ITEM 16. Exhibits.
Exhibits not incorporated by reference to a prior filing are designated by
an asterisk (*) and are filed herewith; all exhibits not so designated are
incorporated by reference to a prior filing as indicated.
(1) -- (a) Form of Underwriting Agreement relating to the Debt
Securities.*
(b) Form of Underwriting Agreement relating to the Equity
Securities.*
(4) -- (a) Form of Senior Indenture.*
(b) Form of Subordinated Indenture.*
(c) Restated Certificate of Incorporation of Murphy Oil, dated
September 25, 1986 (originally filed as Exhibit 3.1 to Form
10-K for the year ended December 31, 1996, File No.001-08590).
(d) Rights Agreement, dated as of December 6, 1989 between Murphy
Oil and Harris Trust Company of New York (originally filed as
Exhibits 1 and 2 to Form 8-A, dated December 12, 1989, File
No. 1-8590), as amended by Amendment No. 1, dated as of April
6, 1998 (originally filed as Exhibit 3 to Form 8-A/A, dated
April 14, 1998, File No. 001-08590), and by Amendment No. 2,
dated as of
II-1
April 15, 1999 (originally filed as Exhibit 4 to Form 8-A/A,
dated April 19, 1999, File No. 001-08590).
(5) -- Opinion of Counsel to Murphy Oil.*
(12) -- (a) Computation of Ratio of Earnings to Fixed Charges.*
(b) Computation of Ratio of Earnings before Special Items to
Fixed Charges.*
(23) -- (a) Consent of Counsel to Murphy Oil (included in Exhibit 5).*
(b) Consent of KPMG LLP.*
(24) -- Powers of Attorney (included on signature page).*
- ------------
* Filed with this registration statement.
ITEM 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-2
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to any charter provision, by-law, contract,
arrangement, statute, or otherwise, the registrant has been advised that in the
opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted against the registrant by such director, officer
or controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question of whether such indemnification by it is against public policy as
expressed in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee to act under
Subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of El Dorado, and State of Arkansas, on the 4th day of
August, 1999.
MURPHY OIL CORPORATION
By /s/ Claiborne P. Deming
------------------------------------
Claiborne P. Deming
President
The registrant and each person whose signature appears below constitutes
and appoints Claiborne P. Deming, Steven A. Cosse and Odie F. Vaughan, and any
agent for service named in this registration statement and each of them, his,
her or its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him, her or it and in his, her, or its
name, place and stead, in any and all capacities, to sign and file (i) any and
all amendments (including post-effective amendments) to this registration
statement, with all exhibits thereto, and other documents in connection
therewith, and (ii) a registration statement, and any and all amendments
thereto, relating to the offering covered hereby filed pursuant to Rule 462(b)
under the Securities Act of 1933, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he, she, or it might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on the 4th day of August, 1999:
Signature Title
--------- -----
(I) PRINCIPAL EXECUTIVE OFFICER:
/s/ Claiborne P. Deming President and Chief Executive Officer and
--------------------------------------------- Director
Claiborne P. Deming
(II) PRINCIPAL FINANCIAL OFFICER:
/s/ Steven A. Cosse Senior Vice President and General Counsel
---------------------------------------------
Steven A. Cosse
(III) PRINCIPAL ACCOUNTING OFFICER:
/s/ Ronald W. Herman Controller
---------------------------------------------
Ronald W. Herman
(IV) DIRECTORS:
/s/ R. Madison Murphy Chairman and Director
---------------------------------------------
R. Madison Murphy
II-4
/s/ B. R. R. Butler Director
---------------------------------------------
B. R. R. Butler
/s/ George S. Dembroski Director
---------------------------------------------
George S. Dembroski
/s/ H. Rodes Hart Director
---------------------------------------------
H. Rodes Hart
/s/ Vester T. Hughes, Jr. Director
---------------------------------------------
Vester T. Hughes, Jr.
/s/ C. H. Murphy, Jr. Director
---------------------------------------------
C. H. Murphy, Jr.
/s/ Michael W. Murphy Director
---------------------------------------------
Michael W. Murphy
/s/ William C. Nolan, Jr. Director
---------------------------------------------
William C. Nolan, Jr.
/s/ Caroline G. Theus Director
---------------------------------------------
Caroline G. Theus
/s/ Lorne C. Webster Director
---------------------------------------------
Lorne C. Webster
II-5
INDEX TO EXHIBITS
Exhibit
No. Description
- ------- -----------
(1) -- (a) Form of Underwriting Agreement relating to the Debt
Securities.*
(b) Form of Underwriting Agreement relating to the Equity
Securities.*
(4) -- (a) Form of Senior Indenture.*
(b) Form of Subordinated Indenture.*
(c) Restated Certificate of Incorporation of Murphy Oil, dated
September 25, 1986 (originally filed as Exhibit 3.1 to Form
10-K for the year December 31, 1996, File No. 001-08590).
(d) Rights Agreement, dated as of December 6, 1989 between
Murphy Oil and Harris Trust Company of New York (originally
filed as Exhibits 1 and 2 to Form 8-A, dated December 12,
1989, File No. 1-8590), as amended by Amendment No. 1,
dated as of April 6, 1998 (originally filed as Exhibit 3 to
Form 8-A/A, dated April 14, 1998, File No. 001-08590), and
by Amendment No. 2, dated as of April 15, 1999 (originally
filed as Exhibit 4 to Form 8-A/A, dated April 19, 1999,
File No. 001-08590).
(5) -- Opinion of Counsel to Murphy Oil.*
(12) -- (a) Computation of Ratio of Earnings to Fixed Charges.*
(b) Computation of Ratio of Earnings before Special Items to
Fixed Charges.*
(23) -- (a) Consent of Counsel to Murphy Oil (included in Exhibit 5).*
(b) Consent of KPMG LLP.*
(24) -- Powers of Attorney (included on signature page).*
- ------------
* Filed with this registration statement.
Exhibit 1(a)
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
---------- --, ----
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 [Currency and Principal
Amount] aggregate principal amount of [Full Title of Debt Securities] (the "Debt
Securities"). The Debt Securities are also referred to herein as the "Offered
Securities." The Debt Securities will be issued pursuant to the provisions of an
Indenture dated as of _______ __, ____[, as amended by a Supplemental Indenture
(a "Supplemental Indenture") dated as of _______ __, ____ (as amended,] the
"Indenture") between the Company and , ____________________________________
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 _______ __,
____, to the Closing Date (as hereinafter defined):
Name Principal Amount of Debt Securities
---- -----------------------------------
Total . . . . . . . .$
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at __:__ a.m. (New York City time) on _______ __, ____, 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 _______
__, ____, including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates:
_______ __and _______ commencing _______ __, ____
(Interest accrues from _______ __, ____)
Form and Denomination:
[Other Terms:]
All provisions contained in the document entitled Murphy Oil Corporation
Underwriting Agreement Standard Provisions (Debt Securities) dated _______ __,
____, 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 (a)
if any
2
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,
[Name of Lead Manager],
Acting severally on behalf of itself
and the several Underwriters named herein:
By:
--------------------------------------
Name:
Title:
Accepted:
MURPHY OIL CORPORATION
By:
-----------------------------------
Name:
Title:
3
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES)
------- --, ----
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
2
(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
3
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
4
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.
(o) In the case of Securities convertible into Common Stock of
the Company, $1.00 par value (the "Common Stock"), the shares of Common
Stock issuable upon the conversion of the Securities have been reserved
for issuance and, when issued upon conversion of such Securities in
accordance with the terms of the Indenture, will be duly authorized,
validly issued, fully paid and non-assessable and will conform to the
description thereof in the Prospectus. Stockholders of the Company have
no preemptive rights with respect to shares of Common Stock into which
the Securities may be converted.
(p) In the case of Securities convertible into Common Stock, any
rights to purchase capital securities of the Company issuable in
conjunction with Common Stock ("Rights") issuable upon the conversion of
the Securities are duly authorized and, when issued, will be validly
issued and will conform to the description thereof in the Prospectus.
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,
5
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations, of the Company and its subsidiaries, taken as a
whole, from that set forth in the Prospectus, that, in the
judgment of the Manager, is material and adverse and that makes
it, in the judgment of the Manager, impracticable to market the
Offered Securities or enforce contracts for the sale of the
Offered Securities on the terms and in the manner contemplated in
the Prospectus.
(b) The Manager shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in clause (a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his knowledge as to proceedings threatened.
(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters specified in the Prospectus,
dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
6
(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
7
own expense, to the Underwriters, and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus
as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as so amended or supplemented,
will comply with law.
(d) To endeavor 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
8
(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.
(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
9
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. (a) 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 in each case 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.
10
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel, (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 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.
(d) 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
11
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.
(e) 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.
(f) 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
12
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 or the
Nasdaq National Market, (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 to commence or continue to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus.
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
13
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.
10. Governing Law. THIS AGREEEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAW OF
THE STATE OF NEW YORK.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
12. Parties at Interest. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company, and the controlling persons,
directors and officers referred to in Section 6 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
14
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 and each Significant Subsidiary has been duly
incorporated in good standing and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
(2) The issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the Company owns the issued and outstanding
common stock of each Significant Subsidiary free and clear of any
mortgages, liens or similar encumbrances.
(3) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(4) To the knowledge of such counsel, the execution and delivery
of the Underwriting Agreement, the issuance of the Offered Securities
and the consummation of the transactions therein contemplated do not and
will not conflict with or constitute or result in a breach of, or
default under, (a) any judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the
Company, any Significant Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or (b) any provision of
any indenture, mortgage or similar agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or
by which they or any material part of their property is bound except for
such conflicts, breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(5) No regulatory consent, authorization, approval or filing is
required by the laws of the States of Delaware or Louisiana or, to the
best of his knowledge, any other state for the issuance, sale and
delivery of the Offered Securities by the Company to the Underwriters
except such as have been obtained or made under the 1933 Act, the 1934
Act and other applicable legislation specified in such opinion and such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by you.
(6) 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;
(7) In the case of Debt Securities convertible into Common Stock,
the shares of Common Stock issuable upon the conversion of the Debt
Securities have been reserved for issuance and, when issued upon
conversion of such Debt Securities in accordance with the terms of the
Indenture, will be duly authorized, validly issued, fully paid and
non-assessable and will conform to the description thereof in the
Prospectus. Stockholders of the Company have no preemptive rights with
respect to shares of Common Stock into which the Debt Securities may be
converted.
(8) 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.
(9) 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
2
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 of local counsel as to laws other
than the federal laws of the United States, the General Corporation Law of the
State of Delaware or the laws of the State of Louisiana; 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 (9) 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.
3
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) The Underwriting 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 the Underwriting 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 the Underwriting 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 (7) 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.
2
EXHIBIT C
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered pursuant to
Section 4(e) of the Underwriting Agreement shall be to the effect that:
(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 is 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.
(5) 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 (5) 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.
4
Exhibit 1(b)
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
New York, New York
---------- --, ----
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 [Number of Shares] of
[Full Title of Equity Securities] (the "Firm Equity Securities"). The Firm
Equity Securities are also referred to herein as the "Offered Securities."
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 number of shares of Firm Equity
Securities set forth below opposite its name at a purchase price of $____.
Number of Shares of Firm Equity
Name Securities
---- -----------------------------------
Total . . . . . . . .$
============
The Underwriters will pay for the Offered Securities upon delivery
thereof at [office] at __:__ a.m. (New York City time) on _______ __, ____, 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 _______
__, ____, including the following:
Title of Equity Securities:
Number of Firm Equity Securities to be issued:
Maximum Number of Additional Equity Securities to be issued:
Current ratings (for preferred equity securities):
Dividend rate:
Redemption provisions:
Conversion provisions:
Other terms:
Public offering price:
Purchase price:
Specified funds for payment of purchase price:
Closing date and location:
Lock-up Period:
Additional co-managers, if any:
All provisions contained in the document entitled Murphy Oil Corporation
Underwriting Agreement Standard Provisions (Equity Securities) dated _______ __,
____, 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 (a)
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.
2
Very truly yours,
[Name of Lead Manager],
Acting severally on behalf of itself
and the several Underwriters named herein:
By:
--------------------------------------
Name:
Title:
Accepted:
MURPHY OIL CORPORATION
By:
-----------------------------------
Name:
Title:
3
MURPHY OIL CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES)
------- --, ----
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 its equity securities (the "Equity 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 Underwriting Agreement relating to each offering of Equity
Securities shall specify the class, designation and terms of the Equity
Securities to be issued, the names of the Underwriters participating in such
offering (subject to substitution as provided in Section 8 hereof) and the
number of Equity Securities which each Underwriter severally agrees to purchase
(collectively, the "Firm Equity Securities") the names of such of such
Underwriters acting as co-managers in connection with such offering, the price
at which the Equity Securities are to be purchased by the Underwriters from the
Company, the initial public offering price and the time and place of delivery
and payment. In addition, the Underwriting Agreement shall specify the maximum
number of Equity Securities, if any (the "Additional Equity Securities"), that
the Company proposes to issue and sell to the Underwriters if and to the extent
that the Manager shall have determined to exercise, on behalf of the several
Underwriters, the right to purchase such Additional Equity Securities.
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 Equity Securities and has filed with, or transmitted for filing
to, or shall 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
2
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 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.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and
to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except
to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the descriptions thereof contained in the Prospectus.
(g) The Equity Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement and
the Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Equity Securities will not be
subject to any preemptive or similar rights.
(h) The shares of the Company's common stock, par value $1.00 per
share (the "Common Stock"), into which the Equity Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the Equity Securities and,
when issued and delivered upon any such conversion, will be validly
3
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
(i) 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.
(j) 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.
(k) 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.
(l) 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.
(m) 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.
(n) 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
consummation of the transactions contemplated herein 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
4
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 or state securities or Blue
Sky laws.
(o) 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 Firm Equity 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 Firm Equity Securities to be purchased by them.
If so specified in the Underwriting Agreement, the Underwriters shall
have a one-time right to purchase, severally and not jointly, up to the number
of Additional Equity Securities set forth in the Underwriting Agreement at the
purchase price set forth in the Underwriting Agreement plus accrued dividends,
if any. Additional Equity Securities may be purchased solely for the purpose of
covering over-allotments made in connection with the offering of the Firm Equity
Securities. If any Additional Equity Securities are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Equity Securities (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Additional Equity Securities to be purchased as the number of
Firm Equity Securities set forth opposite its name in the Underwriting Agreement
bears to the total number of Firm Equity Securities.
Payment of the purchase price for, and delivery of, any Additional
Equity Securities to be purchased by the Underwriters shall be made at such time
(which may be the same as the Closing Date but shall in no event be earlier than
the Closing Date nor later than ten business days after the giving of the notice
hereinafter referred to) and place as shall be designated in a written notice
from the Manager to the Company of the Manager's determination, on behalf of the
Underwriters, to purchase a number, specified in such notice, of Additional
Equity Securities, or at such other time, in any event not later than 30 days
after the
5
Closing Date, as shall be designated in writing by the Underwriters. The time
and date of such payment are hereinafter referred to as the "Option Closing
Date". The notice of the determination to exercise the option to purchase
Additional Equity Securities and of the Option Closing Date may be given at any
time within 30 days after the date of the Underwriting Agreement.
Certificates evidencing the Firm Equity Securities and Additional Equity
Securities shall be in definitive form and registered in such names in such
denominations as the Manager shall request in writing not less than two full
business days prior to the Closing Date or the Option Closing Date, as the case
may be. The certificates evidencing the Firm Equity Securities and Additional
Equity Securities shall be delivered to the Manager at the Closing Date or the
Option Closing Date, as the case may be, for the respective accounts of the
several Underwriters, with any transfer taxes payable in connection with the
transfer of the Firm Equity Securities and the Additional Equity Securities to
the Underwriters duly paid, against payment of the purchase price therefor.
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.
6
(c) The Manager shall have received on the Closing Date an
opinion of the General Counsel of the Company, dated the Closing Date,
in form and substance satisfactory to the Underwriters and the
Underwriters' counsel, to the effect set forth in Exhibit A.
(d) The Manager shall have received on the Closing Date an
opinion of Davis Polk & Wardwell, counsel for the Company, dated the
Closing Date, in form and substance satisfactory to the Underwriters and
the Underwriters' counsel, to the effect set forth in Exhibit B.
(e) The Manager shall have received on the Closing Date an
opinion of counsel for the Underwriters specified in the Prospectus,
dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Manager shall have received on the Closing Date a letter,
dated the Closing Date, in form and substance satisfactory to the
Manager, from the Company's independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(g) The Company shall not have failed at or prior to the Closing
Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder
at or prior to the Closing Date.
(h) The Company shall have furnished or caused to be furnished to
the Manager such further certificates and documents as the Manager shall
have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to the Manager and its counsel.
Any certificate or document signed by any officer of the Company and
delivered to the Manager, as representatives of the Underwriters, or to counsel
for the Underwriters, shall be deemed a representation and warranty by the
Company to each Underwriter as to the statements made therein.
The obligations of the Underwriters to purchase Additional Equity
Securities pursuant to any Underwriting Agreement are subject to the delivery to
the Manager at the Option Closing Date of such documents as the Manager may
reasonably request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Equity Securities and other matters
related to the issuance of the Additional Equity Securities.
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
7
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
8
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) If so specified in the Underwriting Agreement, the Company
will not, without the prior written consent of the Manager, offer, sell,
contract to sell or otherwise dispose of any securities of the Company
designated in the Agreement during the Lock-up Period specified in the
Underwriting Agreement, other than (i) the Equity Securities to be sold
hereunder; (ii) the Common Stock, if any, issuable upon conversion
convertible into Common Stock or upon exercise of any existing options
to purchase Common Stock; and (iii) options or shares of Common Stock
sold or issued pursuant to any employee benefit plan or arrangement of
the Company or any of its subsidiaries existing on the date of the
Underwriting Agreement.
(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 and this Agreement; (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, 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
associated with obtaining ratings for the Offered Securities from
nationally recognized statistical rating organizations; (ix) 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 (x) the fees and expenses of
the Company's accountants and the fees and
9
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.
(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
10
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 in each case 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.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to 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
11
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.
(d) 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
12
principal amounts of Offered Securities they have agreed to purchase hereunder,
and not joint.
(e) 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.
(f) 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 or the
Nasdaq National Market, (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
13
the sole judgment of the Manager, impracticable to commence or continue to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
8. Defaulting Underwriters. If, on the Closing Date or the Option
Closing Date, any one or more of the Underwriters shall fail or refuse to
purchase Firm Equity Securities or Additional Equity Securities, as the case may
be, that it has or they have agreed to purchase hereunder on such date, and the
aggregate amount of Firm Equity Securities or Additional Equity Securities, as
the case may be, 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 Firm Equity Securities to be purchased pursuant to the Underwriting
Agreement, the nondefaulting Underwriters shall be obligated severally in the
proportions that the amount of Firm Equity Securities set forth opposite their
respective names above bears to the aggregate amount of Firm Equity Securities
set forth opposite the names of all such nondefaulting Underwriters, or in such
other proportions as the Manager may specify, to purchase the Firm Equity
Securities or Additional Equity Securities, as the case may be, 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 Firm Equity
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 Firm Equity Securities without the written consent
of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Equity Securities or Additional Equity
Securities, as the case may be, and the aggregate amount of Firm Equity
Securities or Additional Equity Securities, as the case may be, with respect to
which such default occurs is more than one-tenth of the aggregate amount of Firm
Equity Securities to be purchased pursuant to the Underwriting Agreement, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Firm Equity Securities or Additional Equity 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 or the Option 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 the approval
of the Manager and the approval of the Company, purchases Firm Equity Securities
or Additional Equity 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)
14
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.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
12. Parties at Interest. This Agreement has been and is made solely for
the benefit of the Underwriters and the Company, and the controlling persons,
directors and officers referred to in Section 6 hereof, and their respective
successors, assigns, executors and administrators. No other person shall acquire
or have any right under or by virtue of this Agreement.
15
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 and each Significant Subsidiary has been duly
incorporated in good standing and is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement.
(2) The issued and outstanding common stock of each Significant
Subsidiary has been duly authorized and validly issued and is fully paid
and non-assessable; and the Company owns the issued and outstanding
common stock of each Significant Subsidiary free and clear of any
mortgages, liens or similar encumbrances.
(3) 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.
(4) To the knowledge of such counsel, the execution and delivery
of the Underwriting Agreement, the issuance of the Offered Securities
and the consummation of the transactions therein contemplated do not and
will not conflict with or constitute or result in a breach of, or
default under, (a) any judgment, order or decree of any government,
governmental instrumentality or court having jurisdiction over the
Company, any Significant Subsidiary, or any of their property, which is
material to such corporations, taken as a whole or (b) any provision of
any indenture, mortgage or similar agreement or instrument known to such
counsel to which the Company or any Significant Subsidiary is a party or
by which they or any material part of their property is bound except for
such conflicts, breaches or defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole.
(5) No regulatory consent, authorization, approval or filing is
required by the laws of the States of Delaware or Louisiana or, to the
best of his knowledge, any other state for the issuance, sale and
delivery of the Offered Securities by the Company to the Underwriters
except such as have been obtained or made under the 1933 Act, the 1934
Act and other applicable legislation specified in such opinion and such
as may be required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Securities by you.
(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) The Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Securities will not be subject to any preemptive or
similar rights.
(8) The shares of the Company's Common Stock, par value $1.00
per share (the "Common Stock"), into which the Offered Securities may be
converted, if any (the "Conversion Shares"), have been duly authorized
and reserved for issuance upon conversion of the Offered Securities and,
when issued and delivered upon any such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
Conversion Shares will not be subject to any preemptive or similar
rights.
(9) 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.
(10) 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 rules and regulations thereunder; such counsel
has no reason to believe that, as of its effective date, the
Registration
2
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 of local counsel as to laws other
than the federal laws of the United States, the General Corporation Law of the
State of Delaware or the laws of the State of Louisiana; provided that (a) each
such local counsel is acceptable to the Representatives and (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. With respect to
subparagraph (10) 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, but without independent check
or verification thereof, except as stated.
3
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) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Registration Statement is 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.
(3) 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 except such as have been
obtained under the Securities 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.
(4) 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.
(5) 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 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 (5) 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.
2
EXHIBIT C
Opinion of
Counsel for the Underwriters
The opinion of counsel for the Underwriters, to be delivered pursuant to
Section 4(e) of the Underwriting Agreement shall be to the effect that:
(1) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(2) The Offered Securities have been duly authorized and, when
issued and delivered in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and non-assessable, and
the issuance of such Securities will not be subject to any preemptive or
similar rights.
(3) 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 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 (3) 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.
4
Exhibit 4(a)
========================================================
MURPHY OIL CORPORATION
as Issuer
and
as Trustee
Indenture
Dated as of __________, ____
---------------
========================================================
CROSS REFERENCE SHEET*
-----------
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture to be
dated as of _________, ____ between MURPHY OIL CORPORATION and
_________________________, 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........................................14
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.............21
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..........................................23
SECTION 3.08. Reports by the Trustee.........................................23
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........................................31
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..................................35
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.............39
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
ii
PAGE
----
SECTION 5.11. Merger, Conversion, Consolidation or Succession
to Business of Trustee....................................43
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....................44
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..............45
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...............................49
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...........................................54
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...............56
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......................................57
SECTION 11.02. Notice of Redemption; Partial Redemptions.....................57
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..........................62
SECTION 12.02. Defeasances and Discharge.....................................62
SECTION 12.03. Covenant Defeasance...........................................62
SECTION 12.04. Conditions to Defeasance......................................63
SECTION 12.05. Deposited Money and U.S. Government Obligations
to Be Held in Trust; Reinstatement; Miscellaneous.........65
iv
PAGE
----
ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.01. Applicability; Conversion Privilege and Conversion Price......66
SECTION 13.02. Exercise of Conversion Privilege..............................66
SECTION 13.03. Fractions of Shares...........................................67
SECTION 13.04. Adjustment of Conversion Price................................67
SECTION 13.05. Notice of Adjustments of Conversion Price.....................70
SECTION 13.06. Notice of Certain Corporate Action............................70
SECTION 13.07. Issuer to Reserve Common Stock................................71
SECTION 13.08. Taxes on Conversions..........................................71
SECTION 13.09. Covenant as to Common Stock...................................72
SECTION 13.10. Cancellation of Converted Securities..........................72
SECTION 13.11. Provisions in Case of Consolidation, Merger or
Sale of Assets............................................72
TESTIMONIUM...................................................................73
SIGNATURES....................................................................73
ACKNOWLEDGMENTS...............................................................74
v
THIS INDENTURE, dated as of ____________, ____ between MURPHY OIL
CORPORATION (the "Issuer"), a corporation organized under the laws of
the State of Delaware, and _________________________ (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.
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.
"Common Stock" means any stock of any class of the Issuer which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Issuer
and which is not subject to redemption by the Issuer.
"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 Issuer and its
Subsidiaries, less the aggregate
2
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 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).
"Conversion Price" has the meaning specified in Section 14.01
"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 .
"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
3
not include: (i) any indebtedness for the payment, redemption or satisfaction of
which money (or evidences of indebtedness, if permitted under the instrument
creating or evidencing such indebtedness) in the necessary amount shall have
been irrevocably deposited in trust with a trustee or proper depository either
on or before the maturity or redemption date thereof or (ii) any indebtedness of
such Person to any of its subsidiaries or of any subsidiary to such Person or
any other subsidiary or (iii) any indebtedness incurred in connection with the
financing of operating, construction or acquisition projects, provided that the
recourse for such indebtedness is limited to the assets of such projects.
"Global Security" means a Security evidencing all or a part of a series
of Securities, issued to the Depositary for such series in accordance with
Section 2.05, 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.
4
"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.
"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
5
given as herein provided, or provision satisfactory to the Trustee
shall have been made for giving such notice;
(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 Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer); and
(d) Securities converted for Common Stock pursuant to Article
Thirteen.
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
6
vice chairman of the executive committee, the president, any vice president, the
cashier, the secretary, the treasurer, any senior trust officer, any trust
officer, any assistant trust officer, any assistant vice president, any
assistant cashier, any assistant secretary, any assistant treasurer, or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of his knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer that owns a
Principal Property and has Stockholders' Equity that is greater than 2% of the
Consolidated Net 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
7
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.
"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
8
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends, not inconsistent with the provisions of this
Indenture, as may be required to comply with any law or with any rules or
regulations pursuant thereto, or with any rules of any securities exchange or to
conform to general usage, all as may be determined by the officers executing
such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
SECTION 2.02. 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.
---------------------------------
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);
9
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) if other than the coin or currency of the United States, the
coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the principal of
or interest, if any, on the Securities of that series shall be payable
and the method of valuing that coin or currency for purposes of
determining the aggregate principal amount of Securities of that series
then Outstanding and the amount to be paid to satisfy a judgment
denominated in the coin or currency of the United States;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue,
the interest payment dates on which such interest shall be payable and
the record dates for the determination of Holders to whom interest is
payable;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.02);
(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;
10
(11) if the amount of payments of principal of and interest on the
Securities of the series may be determined with reference to an index
based on a coin or currency other than that in which the Securities of
the series are denominated, the manner in which such amounts shall be
determined;
(12) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series held by a person who
is not a U.S. person in respect of any tax, assessment or governmental
charge withheld or deducted and, if so, whether the Issuer will have
the option to redeem such Securities rather than pay such additional
amounts;
(13) any trustees, authenticating or paying agents, transfer agents
or registrars or any other agents with respect to the Securities of
such series;
(14) any other events of default or covenants with respect to the
Securities of such series;
(15) whether the Securities of the series shall be issued in the
form of one or more Global Securities and, in such case, the Depositary
for such Global Security or Securities; and
(16) the terms and conditions, if any, pursuant to which the
Securities of the series are convertible into Common Stock of the
Issuer; and
(17) 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
11
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 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
12
have been established, all such terms will have been duly
authorized by the Issuer and will have been established in
conformity with the provisions of this Indenture;
(c) such Securities, when authenticated and delivered by the
Trustee and issued by the Issuer in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
valid and binding obligations of the Issuer;
(d) all laws and requirements in respect of the execution and
delivery by the Issuer of the Securities have been complied with;
and
(e) covering such other matters as the Trustee may reasonably
request.
(5) an Issuer Order requesting such authentication and setting
forth delivery instructions if the Securities are not to be delivered
to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Issuer Order may be delivered
by the Issuer to the Trustee prior to the delivery to the Trustee of
such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to procedures acceptable to the Trustee as may
be specified from time to time by an Issuer Order, (c) the maturity
date or dates, original issue date or dates, interest rate or rates and
any other terms of Securities of such series shall be determined by an
Issuer Order or pursuant to such procedures and (d) if provided for in
such procedures, such Issuer Order may authorize authentication and
delivery pursuant to oral or electronic instructions from the Issuer or
its duly authorized agent or agents, which oral instructions shall be
promptly confirmed in writing;
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its board of directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
13
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 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.
14
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 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,
15
(i) to the Person specified by such Depositary a new Security or
Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and
in exchange for such Person's beneficial interest in the Global
Security; and
(ii) to such Depositary a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form without coupons, in authorized denominations, such Global
Security shall be 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.
16
The person in whose name any Security of any series is registered at
the close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the persons in whose names Outstanding Securities for such series are
registered at the close of business on a subsequent record date (which shall be
not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to
the holders of Securities not less than 15 days preceding such subsequent record
date. The term "record date" as used with respect to any interest payment date
(except a date for payment of defaulted interest) shall mean the date specified
as such in the terms of the Securities of any particular series, or, if no such
date is so specified, if such interest payment date is the first day of a
calendar month, the fifteenth day of the next preceding calendar month or, if
such interest payment date is the fifteenth day of a calendar month, the first
day of such calendar month, whether or not such record date is a Business Day.
SECTION 2.08. 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.
17
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be
duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to the Issuer and the Trustee duly executed by,
the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the
first mailing of notice of redemption of Securities of such series to be
redeemed, or (b) any Securities selected, called or being called for redemption
except, in the case of any Security where notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed.
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
SECTION 2.09. 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
18
instead of issuing a substitute Security, pay or authorize the payment of the
same (without surrender thereof except in the case of a mutilated or defaced
Security), if the applicant for such payment shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as any of them may require to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence
to their satisfaction of the destruction, loss or theft of such Security and of
the ownership thereof.
Every substitute Security of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security is
destroyed, lost or stolen shall constitute an additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at
any time enforceable by anyone and that substitute Security shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set
forth in) this Indenture equally and proportionately with any and all other
Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the
extent permitted by law, the foregoing provisions are exclusive with respect to
the replacement or payment of mutilated, defaced or destroyed, lost or stolen
Securities and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
SECTION 2.10. Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or of the Trustee,
shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be 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
19
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee. Temporary Securities may contain such reference to any provisions of
this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Securities
of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to
Section 3.02, 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, (c)
where Securities may be surrendered for conversion and (d) where notices and
demands to or upon
20
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
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.
21
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will
promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, the Issuer
may at any time, for the purpose of obtaining a satisfaction and discharge with
respect to one or more or all series of Securities hereunder, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust for any
such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section is subject to the provisions
of Section 9.03 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,
22
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 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
23
basis pursuant to Section 103(b)(4) or (b)(6) of the Internal Revenue Code of
1986, as amended (or any successor section thereto), that do not in the
aggregate materially detract from the value of property or assets or materially
impair the use thereof in the operation of the business of the Issuer or any
Restricted Subsidiary, (v) Mortgages in favor of the United States of America or
any instrumentality thereof, or in favor of any foreign government or any
department, agency, instrumentality or political subdivision thereof, to secure
partial, progress, advance or other payments pursuant to any contract or
statute, (vi) Mortgages existing at the date of this Indenture, (vii) liens on
property or assets of the Issuer or any Restricted Subsidiary consisting of
marine Mortgages provided for in Title XI of the Merchant Marine Act of 1936 or
foreign equivalents, (viii) Mortgages on property of the Issuer or any
Restricted Subsidiary securing Debt incurred in connection with the financing of
operating, constructing or acquiring projects, provided that the recourse for
such Debt is limited to the assets of such projects, and (ix) any extension,
renewal or replacement (or successive extensions, renewals or replacements), in
whole or in part, of any Mortgage referred to in the foregoing clauses (i) to
(viii) inclusive or of any Debt secured thereby, provided that the principal
amount of Debt secured thereby shall not exceed the principal amount of Debt so
secured at the time of such extension, renewal or replacement, and; provided,
further, that such Mortgage shall be limited to all or part of substantially the
same property which secured the Mortgage extended, renewed or replaced (plus
improvements on such property).
Notwithstanding the foregoing, the Issuer or any Restricted Subsidiary
may create or permit to exist Mortgages on any Principal Property, or upon any
indebtedness or share of capital stock of any Restricted Subsidiary so long as
the aggregate amount of Debt secured by all such Mortgages (excluding therefrom
the Debt secured by Mortgages set forth in clauses (i) through (ix), inclusive,
above) does not exceed 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
24
or retirement (other than any mandatory retirement), within 120 days of the
effective date of any such arrangement, of Senior Funded Indebtedness; provided,
however, that the amount to be so applied to the defeasance or retirement of
such Senior Funded Indebtedness will be reduced by an amount (not previously
used to reduce the amount of such defeasance or retirement) equal to the lesser
of (x) the amount expended by the Issuer since the date of this Indenture and
within twelve months prior to the effective date of any such arrangement or
within 120 days thereafter for the acquisition by it of unencumbered Principal
Properties or (y) the fair value (as determined by the Board of Directors) of
unencumbered Principal Properties so acquired by the Issuer during such
twelve-month period and 120-day period.
ARTICLE 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
25
specifically dealt with), and continuance of such default or breach for
a period of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of all series affected thereby, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Issuer or for any substantial part of its property or ordering the
winding up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors;
(g) an event of default, as defined in any indenture or instrument
evidencing or securing or under which the Issuer has at the date of
this Indenture or shall hereafter have outstanding, any Debt in an
amount exceeding $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
26
remedied or cured by the Issuer or be waived by the holders of such
Debt before any judgment or decree for the payment of the moneys due
shall have been obtained or entered, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the
part of either the Trustee or any of the holders of the Securities of
such series; or
(h) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the resolution of the Board of
Directors under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default with respect to Securities of such series occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series and the
principal of any and all Securities of such series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise
remedied as
27
provided herein--then and in every such case the holders of a majority in
aggregate principal amount of all the Securities of such series, each series
voting as a separate class, then Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to such series and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
The Trustee shall not be charged with notice of any event of default
referred to in Section 4.01(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
28
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all
29
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.06.
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.
30
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.03. 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
31
whole amount so due and unpaid upon the Securities of such series, then
to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any
instalment of interest over any other instalment of interest, or of any
Security of such series over any other Security of such series, ratably
to the aggregate of such principal and accrued and unpaid interest or
Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 4.04. 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
32
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 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
33
series voting as a separate class) at the time Outstanding shall have the right
to direct the time, method, and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture;
provided that such direction shall not be otherwise than in accordance with law
and the provisions of this Indenture and provided further that (subject to the
provisions of Section 5.01) 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.
34
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund instalment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 4.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (g) of Section 4.01 (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
35
Securityholder for the enforcement of the payment of the principal of or
interest on any Security on or after the due date expressed in such Security.
ARTICLE 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
36
any such statements, certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 4.09 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
37
evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in
aggregate principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
38
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 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
39
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional Indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional Indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Securities, and the Securities are hereby subordinated to such
senior claim.
SECTION 5.07. 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
40
series and have accepted appointment within 30 days after the mailing of such
notice of resignation, the resigning trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 4.12,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and
shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
41
(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.
(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
42
or in such supplemental indenture shall constitute such trustees co-trustees of
the same trust and that each such trustee shall be trustee of a trust or trusts
under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. 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.
43
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 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
44
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
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
45
the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and
the Holders of all the Securities affected by such action.
ARTICLE 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;
46
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture, which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable; provided that no such action shall adversely affect the
interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03; and
(f) to make provision with respect to the conversion rights, if
any, of Holders of Securities pursuant to the requirements of Article
13 hereof; and
(g) 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
47
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 Securityholder without the consent of the Holder of each
Security so affected, or adversely affect the right to convert any Security as
provided in Article Thirteen, 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,
48
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 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
49
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 and shall have provided for conversion rights in
accordance with Section 13.11, by supplemental indenture in form satisfactory to
the Trustee, executed and delivered to the Trustee by such corporation, and (ii)
the Issuer or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be
in default in the performance of any such covenant or condition of this
Indenture.
SECTION 8.02. 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
50
any such liquidation or dissolution, complies with the applicable provisions of
this Indenture.
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 and
conversion, if any, 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
51
due dates therefor (but not upon acceleration) and remaining rights of the
holders to receive mandatory sinking fund payments, if any, (iv) the rights,
obligations and immunities of the Trustee hereunder (v) the rights of the
Securityholders of such series as beneficiaries hereof with respect to the
property so deposited with the Trustee payable to all or any of them and (vi)
the obligations of the Issuer under Section 3.02), 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
52
Holder of the Security of such series shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to the Issuer for any payment which such Holder may
be entitled to collect, and all liability of the Trustee or any paying agent
with respect to such moneys shall thereupon cease provided, however, that the
Trustee or such paying agent, before being required to make any such repayment,
may at the expense of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City and State of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
ARTICLE 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
53
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 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
54
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent have been complied
with, except that in the case of any such application or demand as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture (other than the certificate required by Section
3.05) 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.
55
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
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.
56
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 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
57
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 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.
58
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by the Security.
Upon presentation of any Security redeemed in part only, the Issuer
shall execute and the Trustee shall authenticate and deliver to or on the order
of the Holder thereof, at the expense of the Issuer, a new Security or
Securities of such series , of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 11.04. 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, (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
or (d) which have been converted into Common Stock or otherwise acquired by the
Issuer pursuant to the terms of
59
such Securities. 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 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
60
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 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.
61
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 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
62
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.
(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,
63
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 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.
64
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 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
ARTICLE 13
CONVERSION OF SECURITIES
SECTION 13.01. Applicability; Conversion Privilege and Conversion
Price. Securities of any series which are convertible into Common Stock shall be
convertible in accordance with their terms and (except as otherwise specified as
contemplated by Section 2.03 for Securities of any series) in accordance with
this Article.
Subject to and upon compliance with the provisions of this Article
Fourteen, at the option of the Holder thereof, any Security or any portion of
the principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, (or, with respect to Original
Issue Discount Securities, at the amount determined pursuant to Section 2.03),
or of such portion thereof, into fully paid and nonassessable shares (calculated
as to each conversion to the nearest one-hundredth of a share) of Common Stock,
at the Conversion Price, determined as hereinafter provided, in effect at the
time of conversion. Such conversion right shall expire at the close of business
on the date specified for Securities of such Series. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
date fixed for redemption, unless the Issuer defaults in making the payment due
upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be the price specified
in relation to Securities of such series pursuant to Section 2.03. The
Conversion Price shall be adjusted in certain instances as provided in
paragraphs (a), (b), (c), (d) and (g) of Section 13.04.
SECTION 13.02. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security, together with the conversion notice duly executed, at
any office or agency of the Issuer maintained for that purpose pursuant to
Section 3.02, accompanied by written notice to the Issuer at such office or
agency that the Holder elects to convert such Security or, if less than the
entire principal amount thereof is to be converted, the portion thereof to be
converted. Securities or portions thereof surrendered for conversion during the
period from the close of business on any regular record date next preceding any
interest payment date to the opening of business on such interest payment date
shall (unless such Securities or portions thereof have been called for
redemption on a redemption date within such period) be accompanied by payment to
the Issuer or its order, in New York Clearing House funds or other funds
acceptable to the Issuer, of an
66
amount equal to the interest payable on such interest payment date on the
principal amount of Securities or portions thereof being surrendered for
conversion. No payment or adjustment shall be made upon any conversion on
account of any interest accrued on the Securities surrendered for conversion or,
except as provided in Section 13.04, on account of any dividends on the Common
Stock issued upon conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Issuer
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 13.03.
In the case of any Security which is converted in part only, upon such
conversion the Issuer shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 13.03. Fractions of Shares. No fractional shares of Common
Stock shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Issuer shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price (determined as provided in the last sentence of paragraph
(f) of Section 13.04) at the close of business on the day of conversion.
SECTION 13.04. Adjustment of Conversion Price. (a) In case the Issuer
shall pay or make a dividend or other distribution on any class of capital stock
of the Issuer in Common Stock, the Conversion Price in effect at the opening of
business on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution shall be
reduced by multiplying such Conversion Price by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at the close
of business on
67
the date fixed for such determination and the denominator shall be the sum of
such number of shares and the total number of shares constituting such dividend
or other distribution, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such determination.
For the purposes of this paragraph (a), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the Issuer
but shall include shares issuable in respect of scrip certificates issued in
lieu of fractions of shares of Common Stock. The Issuer will not pay any
dividend or make any distribution on shares of Common Stock held in the treasury
of the Issuer.
(b) In case the Issuer shall issue rights or warrants to all holders of
its Common Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the market price (determined as provided in
paragraph (f) of this Section) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect at the opening of business on the day following the
date fixed for such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such market price and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such reduction
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Issuer but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Issuer will not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the Issuer.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business
68
on the day following the day upon which such subdivision or combination
becomes effective.
(d) In case the Issuer shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (b) of this Section, any dividend or distribution paid in cash out of
the retained earnings of the Issuer and any dividend or distribution referred to
in paragraph (a) of this Section), the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the market price per share (determined
as provided in paragraph (f) of this Section) of the Common Stock on the date
fixed for such determination, reduced by the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidence of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such market price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(e) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 13.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be"the
date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination") within the meaning of
paragraph (d) of this Section, and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective" within the meaning
of paragraph (c) of this Section).
(f) For the purpose of any computation under paragraphs (b) and (d) of
this Section, the market price on any date shall be deemed to be the average of
the daily market prices for the ten consecutive Business Days selected by the
Issuer commencing not less than ten nor more than 80 Business Days before the
69
day in question. The closing price for each day shall be the last reported sales
price regular way on the composite tape or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, the average of the closing bid and asked prices as furnished by any
New York Stock Exchange member firm selected from time to time by the Issuer for
that purpose.
(g) The Issuer may make such reductions in the Conversion Price, in
addition to those required by paragraphs (a), (b), (c) and (d) of this Section,
as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
SECTION 13.05. Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided:
(a) the Issuer shall compute the adjusted Conversion Price in
accordance with Section 13.04 and shall prepare a certificate signed by the
Treasurer or an Assistant Treasurer, the Controller or an Assistant Controller
of the Issuer setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Securities pursuant to
Section 3.02; and
(b) a notice stating that the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall forthwith be required, and as
soon as practicable after it is required, such notice shall be prepared by the
Issuer, filed with the Trustee and mailed by the Issuer to all Holders at their
last addresses as they shall appear in the Security Register.
SECTION 13.06. Notice of Certain Corporate Action. In case:
(a) the Issuer shall declare a dividend (or any other distribution) on
Common Stock payable otherwise than in cash out of its retained earnings; or
(b) the Issuer shall authorize the granting to the holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of capital
stock of any class or of any other rights; or
70
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock), or of any
consolidation or merger to which the Issuer is a party and for which approval of
any stockholders of the Issuer is required, or of the sale or transfer of all or
substantially all of the assets of the Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Securities pursuant to
Section 3.02, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 20 days (or
ten days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give notice required by this Section or any defect therein shall
not affect the legality or validity of any dividend, distribution, rights,
warrants, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote on any such action.
SECTION 13.07. Issuer to Reserve Common Stock. The Issuer shall at all
times reserve and keep available, free from pre-emptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all outstanding Securities.
SECTION 13.08. Taxes on Conversions. The Issuer will pay any and all
transfer taxes that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant thereto. The Issuer shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Issuer the amount of any such tax, or has established
to the satisfaction of the Issuer that such tax has been paid.
71
SECTION 13.09. Covenant as to Common Stock. The Issuer covenants that
all shares of Common Stock which may be issued upon conversion of Securities
will upon issue be fully paid and nonassessable.
SECTION 13.10. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee for cancellation and
the Trustee shall dispose of the same as provided in Section 2.10.
SECTION 13.11. Provisions in Case of Consolidation, Merger or Sale of
Assets. In case of any consolidation of the Issuer with, or merger of the Issuer
into, any other corporation, any merger of another corporation into the Issuer
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Issuer) or
any sale or transfer of all or substantially all of the assets of the Issuer,
the corporation formed by such consolidation or resulting from such merger or
which acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 13.01, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock of the Issuer into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Issuer (i) is not a corporation with
which the Issuer consolidated or into which the Issuer merged or which merged
into the Issuer or to which such sale or transfer was made, as the case may be
("constituent corporation"), or an Affiliate of a constituent corporation and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each share of Common Stock of the Issuer held
immediately prior to such consolidation, merger, sale or transfer by others than
a constituent corporation or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
72
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
-------------------------------
as Trustee
By
-------------------------------
[CORPORATE SEAL]
Attest:
By
-------------------------------
73
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
74
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
, 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
75
Exhibit 4(b)
========================================================
MURPHY OIL CORPORATION
as Issuer
and
as Trustee
Indenture
Dated as of _________, ____
------------------
Subordinated Debt Securities
========================================================
CROSS REFERENCE SHEET*
-----------
Between
Provisions of the Trust Indenture Act of 1939 and the Indenture to be
dated as of , between MURPHY OIL CORPORATION and
, 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.............21
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.........................................23
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..............................................23
PAGE
----
SECTION 4.02. Collection of Indebtedness by Trustee; Trustee May Prove
Debt...........................................................26
SECTION 4.03. Application of Proceeds........................................29
SECTION 4.04. Suits for Enforcement..........................................30
SECTION 4.05. Restoration of Rights on Abandonment of Proceedings............30
SECTION 4.06. Limitations on Suits by Securityholders........................30
SECTION 4.07. Unconditional Right of Securityholders to Institute Certain
Suits..........................................................31
SECTION 4.08. Powers and Remedies Cumulative; Delay or Omission Not
Waiver of Default..............................................31
SECTION 4.09. Control by Securityholders.....................................32
SECTION 4.10. Waiver of Past Defaults........................................32
SECTION 4.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances..........................................33
SECTION 4.12. Right of Court to Require Filing of Undertaking to Pay
Costs..........................................................33
ARTICLE 5
CONCERNING THE TRUSTEE
SECTION 5.01. Duties and Responsibilities of the Trustee; During Default;
Prior to Default...............................................34
SECTION 5.02. Certain Rights of the Trustee..................................35
SECTION 5.03. Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof..................37
SECTION 5.04. Trustee and Agents May Hold Securities, etc....................37
SECTION 5.05. Moneys Held by Trustee.........................................37
SECTION 5.06. Compensation and Indemnification of Trustee and Its
Prior Claim....................................................37
SECTION 5.07. Right of Trustee to Rely on Officers' Certificate, etc.........38
SECTION 5.08. Persons Eligible for Appointment as Trustee....................38
SECTION 5.09. Resignation and Removal; Appointment of Successor
Trustee........................................................38
SECTION 5.10. Acceptance of Appointment by Successor Trustee.................40
SECTION 5.11. Merger, Conversion, Consolidation or Succession to
Business of Trustee............................................41
SECTION 5.12. Preferential Collection of Claims Against the Issuer...........41
ii
PAGE
----
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
SECTION 6.01. Evidence of Action Taken by Securityholders....................42
SECTION 6.02. Proof of Execution of Instruments and of Holding of
Securities; Record Date........................................42
SECTION 6.03. Holders to Be Treated as Owners................................42
SECTION 6.04. Securities Owned by Issuer Deemed Not Outstanding..............43
SECTION 6.05. Right of Revocation of Action Taken............................43
ARTICLE 7
SUPPLEMENTAL INDENTURES
SECTION 7.01. Supplemental Indentures Without Consent of
Securityholders................................................44
SECTION 7.02. Supplemental Indentures With Consent of Securityholders........45
SECTION 7.03. Effect of Supplemental Indenture...............................47
SECTION 7.04. Documents to Be Given to Trustee...............................47
SECTION 7.05. Notation on Securities in Respect of Supplemental
Indentures.....................................................47
SECTION 7.06. Subordination Unimpaired.......................................47
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 8.01. Issuer May Consolidate, Etc., on Certain Terms.................48
SECTION 8.02. Successor Corporation Substituted..............................48
SECTION 8.03. Opinion of Counsel to Trustee..................................49
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 9.01. Satisfaction and Discharge of Indenture........................49
SECTION 9.02. Application by Trustee of Funds Deposited for Payment of
Securities.....................................................50
SECTION 9.03. Repayment of Moneys Held by Paying Agent.......................50
SECTION 9.04. Return of Moneys Held by Trustee and Paying Agent
Unclaimed for Two Years........................................51
iii
PAGE
----
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.01. Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability.......................51
SECTION 10.02. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders...............................................52
SECTION 10.03. Successors and Assigns of Issuer Bound by Indenture...........52
SECTION 10.04. Notices and Demands on Issuer, Trustee and
Securityholders...............................................52
SECTION 10.05. Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein............................53
SECTION 10.06. Payments Due on Saturdays, Sundays and Holidays...............54
SECTION 10.07. Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939.........................................54
SECTION 10.08. New York Law to Govern........................................54
SECTION 10.09. Counterparts..................................................54
SECTION 10.10. Effect of Headings............................................54
SECTION 10.11. Separability Clause...........................................54
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 11.01. Applicability of Article......................................55
SECTION 11.02. Notice of Redemption; Partial Redemptions.....................55
SECTION 11.03. Payment of Securities Called for Redemption...................56
SECTION 11.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption......................................57
SECTION 11.05. Mandatory and Optional Sinking Funds..........................57
ARTICLE 12
DEFEASANCE
SECTION 12.01. Issuer's Option to Effect Defeasance..........................60
SECTION 12.02. Defeasances and Discharge.....................................60
SECTION 12.03. Covenant Defeasance...........................................61
SECTION 12.04. Conditions to Defeasance......................................61
SECTION 12.05. Deposited Money and U.S. Government Obligations to Be
Held in Trust; Reinstatement; Miscellaneous...................63
iv
PAGE
----
ARTICLE 13
SUBORDINATION OF SECURITIES
SECTION 13.01. Securities Subordinate to Senior Indebtedness.................64
SECTION 13.02. Payment over of Proceeds Upon Dissolution, Etc. of the
Issuer........................................................64
SECTION 13.03. No Payment When Senior Indebtedness in Default in
Payment.......................................................65
SECTION 13.04. Payment Permitted If No Default...............................65
SECTION 13.05. Subrogation to Rights of Holders of Senior Indebtedness.......66
SECTION 13.06. Provisions Solely to Define Relative Rights...................66
SECTION 13.07. Trustee to Effectuate Subordination...........................66
SECTION 13.08. No Waiver of Subordination Provisions.........................67
SECTION 13.09. Notice to Trustee.............................................67
SECTION 13.10. Reliance on Certificate of Liquidating Agent..................68
SECTION 13.11. Trustee Not Fiduciary for Holders of Senior Indebtedness......68
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability; Conversion Privilege and Conversion Price......68
SECTION 14.02. Exercise of Conversion Privilege..............................69
SECTION 14.03. Fractions of Shares...........................................70
SECTION 14.04. Adjustment of Conversion Price................................70
SECTION 14.05. Notice of Adjustments of Conversion Price.....................73
SECTION 14.06. Notice of Certain Corporate Action............................73
SECTION 14.07. Issuer to Reserve Common Stock................................74
SECTION 14.08. Taxes on Conversions..........................................74
SECTION 14.09. Covenant as to Common Stock...................................75
SECTION 14.10. Cancellation of Converted Securities..........................75
SECTION 14.11. Provisions in Case of Consolidation, Merger or Sale of
Assets........................................................75
TESTIMONIUM...................................................................76
SIGNATURES....................................................................76
ACKNOWLEDGMENTS...............................................................77
v
THIS INDENTURE, dated as of ____________, ____ between MURPHY OIL
CORPORATION (the "Issuer"), a corporation organized under the laws of the State
of Delaware, and _________________________, 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 subordinated 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.
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.
"Common Stock" means any stock of any class of the Issuer which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Issuer
and which is not subject to redemption by the Issuer.
"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 Issuer and its
Subsidiaries, less the aggregate
2
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 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).
"Conversion Price" has the meaning specified in Section 14.01
"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 .
"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
3
creating or evidencing such indebtedness) in the necessary amount shall have
been irrevocably deposited in trust with a trustee or proper depository either
on or before the maturity or redemption date thereof or (ii) any indebtedness of
such Person to any of its subsidiaries or of any subsidiary to such Person or
any other subsidiary or (iii) any indebtedness incurred in connection with the
financing of operating, construction or acquisition projects, provided that the
recourse for such indebtedness is limited to the assets of such projects.
"Global Security" means a Security evidencing all or a part of a series
of Securities, issued to the Depositary for such series in accordance with
Section 2.05, 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.
4
"New York Agency" means the office of ,
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 .
"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;
(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); and
(d) Securities converted for Common Stock pursuant to Article
Fourteen.
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
6
corporate trust matter is referred because of his knowledge of and familiarity
with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Issuer that owns a
Principal Property and has Stockholders' Equity that is greater than 2% of the
Consolidated Net Assets of the Issuer.
"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.
[NAME OF TRUSTEE],
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,
7.06 or 11.03);
(3) the date or dates on which the principal of the Securities of
the series is payable;
(4) if other than the coin or currency of the United States, the
coin or currency in which the Securities of that series are
denominated, the coin or currency in which payment of the principal of
or interest, if any, on the Securities of that series shall be payable
and the method of valuing that
9
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 series are denominated, the manner in which such amounts shall be
determined;
10
(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;
(16) the terms and conditions, if any, pursuant to which the
Securities of the series are convertible into Common Stock of the
Issuer; and
(17) 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.
11
If provided for in such procedures, such Issuer Order may authorize
authentication and delivery pursuant to oral instructions from the Issuer or its
duly authorized agent, which instructions shall be promptly confirmed in
writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities the Trustee
shall be entitled to receive (in the case of subparagraphs 1, 2, 3 and 4 below
only at or before the time of the first request of the Issuer to the Trustee to
authenticate Securities of such series), and (subject to Section 5.01) 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, (c)
where Securities may be surrendered for conversion and (d) 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
20
accordance with Section 2.03, the Issuer hereby initially 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.
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
23
specifically dealt with), and continuance of such default or breach for
a period of 90 days after there has been given, by registered or
certified mail, to the Issuer by the Trustee or to the Issuer and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of all series affected thereby, a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Issuer in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Issuer or for any substantial part of its property or ordering the
winding up or liquidation of the Issuer's affairs, and such decree or
order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or for any substantial
part of its property, or make any general assignment for the benefit of
creditors;
(g) an event of default, as defined in any indenture or instrument
evidencing or securing or under which the Issuer has at the date of
this Indenture or shall hereafter have outstanding, any Indebtedness in
an amount exceeding $25,000,000, which default shall involve (i) the
failure by the Issuer to make any payment when such Indebtedness 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
Indebtedness 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
24
under such indenture or instrument shall be remedied or cured by the
Issuer or be waived by the holders of such Indebtedness before any
judgment or decree for the payment of the moneys due shall have been
obtained or entered, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied, cured
or waived without further action upon the part of either the Trustee or
any of the holders of the Securities of such series; or
(h) any other Event of Default provided in the supplemental
indenture or provided in or pursuant to the resolution of the Board of
Directors under which such series of Securities is issued or in the
form of Security for such series.
If an Event of Default with respect to Securities of such series occurs and is
continuing, then, and in each and every such case, unless the principal of all
of the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding hereunder (each such
series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of such series)
of all Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately, and upon any such declaration the same shall become
immediately due and payable.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the principal as may be specified in the
terms thereof) of the Securities of any series shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, the Issuer shall
pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series and the
principal of any and all Securities of such series which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the
extent that payment of such interest is enforceable under applicable law, on
overdue installments of interest, at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities) specified
in the Securities of such series to the date of such payment or deposit) and
such amount as shall be sufficient to cover reasonable compensation to the
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of negligence or bad faith, and if any and all Events of Default under the
Indenture, other than the non-payment of the principal of Securities which shall
have become
25
due by acceleration, shall have been cured, waived or otherwise remedied as
provided herein--then and in every such case the holders of a majority in
aggregate principal amount of all the Securities of such series, each series
voting as a separate class, then Outstanding, by written notice to the Issuer
and to the Trustee, may waive all defaults with respect to such series and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
The Trustee shall not be charged with notice of any event of default
referred to in Section 4.01(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
26
sufficient to cover the costs and expenses of collection, including reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee except as a
result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the
principal of and interest on the Securities of any series to the registered
holders, whether or not the principal of and interest on the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any action or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon such
Securities and collect in the manner provided by law out of the property of the
Issuer or other obligor upon such Securities, wherever situated, the moneys
adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or
any other obligor upon the Securities under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other
obligor upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor, the Trustee, irrespective of whether the
principal of any Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of
principal and interest (or, if the Securities of any series are
Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) owing and
unpaid in respect of the Securities of any series, and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel,
27
and for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as a
result of negligence or bad faith) and of the Securityholders allowed
in any judicial proceedings relative to the Issuer or other obligor
upon the Securities of any series, or to the creditors or property of
the Issuer or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities of any series in any election
of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person
performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on
their behalf; and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that
the Trustee shall consent to the making of payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of
negligence or bad faith and all other amounts due to the Trustee or any
predecessor Trustee pursuant to Section 5.06.
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
28
their respective agents and attorneys, shall be for the ratable benefit of the
holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the holders
of the Securities in respect to which such action was taken, and it shall not be
necessary to make any holders of such Securities parties to any such
proceedings.
SECTION 4.03. 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
29
interest at the same rate as the rate of interest or Yield to Maturity
(in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and
interest or Yield to Maturity, without preference or priority of
principal over interest or Yield to Maturity, or of interest or Yield
to Maturity over principal, or of any instalment of interest over any
other instalment of interest, or of any Security of such series over
any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or any other person lawfully entitled thereto.
SECTION 4.04. 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
30
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 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.
31
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 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
32
series affected shall be restored to their former positions and rights
hereunder, respectively.
Upon any such waiver, such default shall cease to exist and be deemed
to have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 4.11. Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall give to the Securityholders of any
series, as the names and addresses of such Holders appear on the registry books,
notice by mail of all defaults known to the Trustee which have occurred with
respect to such series, such notice to be transmitted within 90 days after the
occurrence thereof, unless such defaults shall have been cured before the giving
of such notice (the term "default" or "defaults" for the purposes of this
Section being hereby defined to mean any event or condition which is, or with
notice or lapse of time or both would become, an Event of Default); provided
that, except in the case of default in the payment of the principal of or
interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund instalment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or trustees and/or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 4.12. Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series, or, in the case of
any suit relating to or arising under clauses (d) or (g) of Section 4.01 (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
33
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.
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
34
statements, certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in
the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 4.09 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
35
prescribed); and any resolution of the Board of Directors may be
evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any advice or Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted to be taken by it
hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions
of this Indenture, unless such Securityholders shall have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted
by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall
not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless requested in
writing so to do by the Holders of not less than a majority in
aggregate principal amount of the Securities of all series affected
then Outstanding; provided that, if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion
of the Trustee, not reasonably assured to the Trustee by the security
afforded to it by the terms of this Indenture, the Trustee may require
reasonable indemnity against such expenses or liabilities as a
condition to proceeding; the reasonable expenses of every such
investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
36
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 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
37
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional Indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional Indebtedness shall be a senior
claim to that of the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the benefit of the holders
of particular Securities, and the Securities are hereby subordinated to such
senior claim.
SECTION 5.07. 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
38
trustees. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 4.12, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
310(b) of the Trust Indenture Act of 1939 with respect to any series of
Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or
Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 310(a) of the Trust Indenture Act of 1939 and
shall fail to resign after written request therefor by the Issuer or by
any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to
any series of Securities, or shall be adjudged a bankrupt or insolvent,
or a receiver or liquidator of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to Section 315(e) of
the Trust Indenture Act of 1939, any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months may on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor trustee with respect to such series. Such court may thereupon, after
such notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
39
(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.
(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
40
or in such supplemental indenture shall constitute such trustees co-trustees of
the same trust and that each such trustee shall be trustee of a trust or trusts
under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in
this Section 5.10, the Issuer shall mail notice thereof by first-class mail to
the Holders of Securities of any series for which such successor trustee is
acting as trustee at their last addresses as they shall appear in the Security
register. If the acceptance of appointment is substantially contemporaneous with
the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.09. 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.
41
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 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
42
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
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
43
the Holders of the percentage in aggregate principal amount of the Securities of
any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and
the Holders of all the Securities affected by such action.
ARTICLE 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;
44
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture, which may be
defective or inconsistent with any other provision contained herein or
in any supplemental indenture; or to make such other provisions in
regard to matters or questions arising under this Indenture or under
any supplemental indenture as the Board of Directors may deem necessary
or desirable; provided that no such action shall adversely affect the
interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 2.03;
(f) to make provision with respect to the conversion rights, if
any, of Holders of Securities pursuant to the requirements of Article
14 hereof; and
(g) 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
45
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 Securityholder without the consent of the Holder of each
Security so affected, or adversely affect the right to convert any security as
provided in Article Fourteen or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to the
Holders, 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
46
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 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.
SECTION 7.06. Subordination Unimpaired. No supplemental indenture
executed pursuant to this Article shall adversely affect the rights of any
holder of Senior Indebtedness under Article Thirteen without the consent of such
holder.
47
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 and shall
have provided for conversion rights in accordance with Section 14.11, by
supplemental indenture in form satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation, and (ii) the Issuer or such
successor corporation, as the case may be, shall not, immediately after such
merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition of this Indenture.
SECTION 8.02. 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.
48
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.
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
49
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 and
conversion, if any, of Securities of such series, and the Issuer's right of
optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed,
lost or stolen Securities, (iii) rights of holders to receive payments of
principal thereof and interest thereon, upon the original stated due dates
therefor (but not upon acceleration) and remaining rights of the holders to
receive mandatory sinking fund payments, if any, (iv) the rights, obligations
and immunities of the Trustee hereunder (v) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them and (vi) the obligations of the
Issuer under Section 3.02), 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
50
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 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.
51
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 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.
52
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.
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.
53
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
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
54
validity, legality and enforceability of the remaining provisions shall not in
any 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 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.
55
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 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
56
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.
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
57
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, (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 or (d) which
have been converted into Common Stock or otherwise acquired by the Issuer
pursuant to the terms of such Securities. 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 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
58
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 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
59
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 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
60
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
? and ?, 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.
(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.
61
(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 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).
62
(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 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.
63
ARTICLE 13
SUBORDINATION OF SECURITIES
SECTION 13.01. Securities Subordinate to Senior Indebtedness. The
Issuer covenants and agrees, and each Holder of a Security, by acceptance
thereof, whether upon original issue or upon transfer or assignment, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth, the payment of the principal of and interest on each and all of the
Securities is hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Indebtedness.
SECTION 13.02. Payment over of Proceeds Upon Dissolution, Etc. of the
Issuer. In the event of any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Issuer or to its creditors, as such, or to
its property, and in the event of any voluntary liquidation, dissolution or
other winding up of the Issuer, whether or not involving insolvency or
bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness before the Holders of the Securities are entitled to receive
any payment on account of principal of or interest on the Securities, and to
that end (but subject to the power of a court of competent jurisdiction to make
other equitable provision reflecting the rights conferred by the provisions of
this Article upon the Senior Indebtedness and the holders thereof with respect
to the Securities and the Holders thereof by a lawful plan of reorganization
under applicable bankruptcy law) the holders of Senior Indebtedness shall be
entitled to receive any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or deliverable in
any such case or proceeding in respect of the Securities, except securities of
the Issuer which are subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness then outstanding.
In the event that, notwithstanding the foregoing, the Trustee or the
Holder of any Security shall have received any payment or distribution of any
kind or character, whether in cash, property or securities (other than as
aforesaid), before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall then have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, agent or other Person
making payment or distribution of assets or securities of the Issuer for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full,
64
after giving effect to any concurrent payment or distribution to or for the
holders Senior Indebtedness.
In the event that any Securities are declared due and payable before
their final maturity because of the occurrence of an Event of Default (under
circumstances when the provisions of the foregoing paragraph shall not be
applicable), the holders of the Senior Indebtedness outstanding at the time such
Securities become due and payable because of such occurrence of an Event of
Default shall be entitled to receive payment in full of all amounts due or to
become due or in respect of all Senior Indebtedness before the Holders of the
Securities are entitled to receive any payment on account of the principal of or
interest on the Securities.
The consolidation of the Issuer with, or the merger of the Issuer into,
another corporation or the liquidation or dissolution of the Issuer following
the conveyance or transfer of its properties and assets substantially as an
entirety to another corporation upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation or
reorganization for the purposes of this Section if such other corporation shall,
as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article Eight.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 5.06.
SECTION 13.03. No Payment When Senior Indebtedness in Default in
Payment.
(a) In the event and during the continuation of any default in the
payment of principal of or interest on any Senior Indebtedness beyond any
applicable period of grace, unless and until such default in payment shall have
been cured or waived or shall have ceased to exist, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment, then no payment of principal of or interest on the Securities shall be
made by the Issuer; provided, however, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
Eleven by means of Securities redeemed or acquired prior to such default in
payment or by means of conversion Securities.
SECTION 13.04. Payment Permitted If No Default. Nothing contained in
this Article or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Issuer, at any time except during the pendency of any case or
proceeding, or any dissolution or other winding up referred to in Section 13.02
or under the
65
other conditions described in Section 13.02 or the conditions described in
Section 13.03 from making payments at any time of principal of or interest on
the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of or
interest on the Securities if, at the time of such application, the Trustee did
not have knowledge that such payment would have been prohibited by the
provisions of this Article.
SECTION 13.05. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated (to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article) to the rights of the holders of such Senior Indebtedness to
receive payments or distributions from the Issuer applicable to the Senior
Indebtedness until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Indebtedness to which the Holders
of the Securities or the Trustee would be entitled except for the provisions of
this Article, and no payments over pursuant to the provisions of this Article to
the holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Issuer, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment or
distribution by the Issuer to or on account of the Senior Indebtedness.
SECTION 13.06. Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall impair, as between the Issuer and the Holders of the Securities, the
obligation of the Issuer, which is absolute and unconditional, to pay to the
Holders of the Securities the principal of and interest on the Securities as and
when the same shall become due and payable in accordance with their terms, or is
intended to or shall effect the relative rights against the Issuer of the
Holders of the Securities and creditors of the Issuer other than the holders of
Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property or securities of the Issuer otherwise payable or deliverable to the
Trustee or such Holder.
SECTION 13.07. Trustee to Effectuate Subordination. Each Holder of a
Security by acceptance thereof, whether upon original issue or upon transfer or
assignment, authorizes and directs the Trustee on his behalf to take such action
as
66
may be necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
SECTION 13.08. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations of
the Holders of the Securities to the holders of the Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or terms of payment
of, or renew or alter, Senior Indebtedness, or otherwise amend or supplement in
any manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Issuer and any other Person.
SECTION 13.09. Notice to Trustee. The Issuer shall give prompt written
notice to the Trustee of any fact known to the Issuer which would prohibit the
making of any payment of money to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article. Notwithstanding the provisions of
this Article or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities pursuant
to the provisions of this Article, unless and until a responsible officer of the
Trustee shall have received at its Corporate Trust Office written notice thereof
from the Issuer or a holder or holders of Senior Indebtedness or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 5.01, shall be entitled in all
respects to assume that no such facts exist.
Subject to the provisions of Section 5.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself or herself to be a holder of Senior Indebtedness (or a
trustee on behalf of such
67
holder) to establish that such notice has been given by a holder of Senior
Indebtedness or a trustee on behalf of any such holder. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of Senior Indebtedness to participate in
any payment or distribution pursuant to this Article, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article, and if
such evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 13.10. Reliance on Certificate of Liquidating Agent. Upon any
payment or distribution referred to in this Article, the Trustee, subject to the
provisions of Section 5.01, and the Holders of the Securities shall be entitled
to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article.
SECTION 13.11. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness. The Trustee's duties to holders of Senior
Indebtedness are limited to those specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture against
the Trustee. The Trustee shall not be liable to any such holders if it shall in
good faith mistakenly pay over or distribute to Holders of Securities or to the
Issuer or to any other Person cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
ARTICLE 14
CONVERSION OF SECURITIES
SECTION 14.01. Applicability; Conversion Privilege and Conversion
Price. Securities of any series which are convertible into Common Stock shall
be convertible in accordance with their terms and (except as otherwise specified
as
68
contemplated by Section 2.03 for Securities of any series) in accordance with
this Article.
Subject to and upon compliance with the provisions of this Article
Fourteen, at the option of the Holder thereof, any Security or any portion of
the principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, (or, with respect to Original
Issue Discount Securities, at the amount determined pursuant to Section 2.03),
or of such portion thereof, into fully paid and nonassessable shares (calculated
as to each conversion to the nearest one-hundredth of a share) of Common Stock,
at the Conversion Price, determined as hereinafter provided, in effect at the
time of conversion. Such conversion right shall expire at the close of business
on the date specified for Securities of such Series. In case a Security or
portion thereof is called for redemption, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
date fixed for redemption, unless the Issuer defaults in making the payment due
upon redemption.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall be the price specified
in relation to Securities of such series pursuant to Section 2.03. The
Conversion Price shall be adjusted in certain instances as provided in
paragraphs (a), (b), (c), (d) and (g) of Section 14.04.
SECTION 14.02. Exercise of Conversion Privilege. In order to exercise
the conversion privilege, the Holder of any Security to be converted shall
surrender such Security, together with the conversion notice duly executed, at
any office or agency of the Issuer maintained for that purpose pursuant to
Section 3.02, accompanied by written notice to the Issuer at such office or
agency that the Holder elects to convert such Security or, if less than the
entire principal amount thereof is to be converted, the portion thereof to be
converted. Securities or portions thereof surrendered for conversion during the
period from the close of business on any regular record date next preceding any
interest payment date to the opening of business on such interest payment date
shall (unless such Securities or portions thereof have been called for
redemption on a redemption date within such period) be accompanied by payment to
the Issuer or its order, in New York Clearing House funds or other funds
acceptable to the Issuer, of an amount equal to the interest payable on such
interest payment date on the principal amount of Securities or portions thereof
being surrendered for conversion. No payment or adjustment shall be made upon
any conversion on account of any interest accrued on the Securities surrendered
for conversion or, except as provided in Section 14.04, on account of any
dividends on the Common Stock issued upon conversion.
69
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Issuer
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable upon
conversion, together with payment in lieu of any fraction of a share, as
provided in Section 14.03.
In the case of any Security which is converted in part only, upon such
conversion the Issuer shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuer, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 14.03. Fractions of Shares. No fractional shares of Common
Stock shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall be computed
on the basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Issuer shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the market price (determined as provided in the last sentence of paragraph
(f) of Section 14.04) at the close of business on the day of conversion.
SECTION 14.04. Adjustment of Conversion Price.
(a) In case the Issuer shall pay or make a dividend or other
distribution on any class of capital stock of the Issuer in Common Stock, the
Conversion Price in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such reduction to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include
70
shares held in the treasury of the Issuer but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Issuer will not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Issuer.
(b) In case the Issuer shall issue rights or warrants to all holders
of its Common Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the market price (determined as provided in
paragraph (f) of this Section) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights or warrants, the
Conversion Price in effect at the opening of business on the day following the
date fixed for such determination shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common Stock so
offered for subscription or purchase would purchase at such market price and the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase, such reduction
to become effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of this
paragraph (b), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Issuer but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Issuer will not issue any rights or warrants in
respect of shares of Common Stock held in the treasury of the Issuer.
(c) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the Conversion Price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) In case the Issuer shall, by dividend or otherwise, distribute to
all holders of its Common Stock evidences of its indebtedness or assets
(including securities, but excluding any rights or warrants referred to in
paragraph (b) of this
71
Section, any dividend or distribution paid in cash out of the retained earnings
of the Issuer and any dividend or distribution referred to in paragraph (a) of
this Section), the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the date fixed for the
determination of stockholders entitled to receive such distribution by a
fraction of which the numerator shall be the market price per share (determined
as provided in paragraph (f) of this Section) of the Common Stock on the date
fixed for such determination, reduced by the then fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution filed with the Trustee) of the portion of
the assets or evidence of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such market price per share of the
Common Stock, such adjustment to become effective immediately prior to the
opening of business on the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(e) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 14.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be"the
date fixed for the determination of stockholders entitled to receive such
distribution" and "the date fixed for such determination") within the meaning of
paragraph (d) of this Section, and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock outstanding
immediately thereafter (and the effective date of such reclassification shall be
deemed to be "the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective" within the meaning
of paragraph (c) of this Section).
(f) For the purpose of any computation under paragraphs (b) and (d) of
this Section, the market price on any date shall be deemed to be the average of
the daily market prices for the ten consecutive Business Days selected by the
Issuer commencing not less than ten nor more than 80 Business Days before the
day in question. The closing price for each day shall be the last reported sales
price regular way on the composite tape or, in case no such reported sale takes
place on such day, the average of the reported closing bid and asked prices
regular way, in either case on the New York Stock Exchange or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the principal
national securities exchange on which the Common Stock is listed or admitted to
trading or, if not
72
listed or admitted to trading on any national securities exchange, the average
of the closing bid and asked prices as furnished by any New York Stock Exchange
member firm selected from time to time by the Issuer for that purpose.
(g) The Issuer may make such reductions in the Conversion Price, in
addition to those required by paragraphs (a), (b), (c) and (d) of this Section,
as it considers to be advisable in order that any event treated for Federal
income tax purposes as a dividend of stock or stock rights shall not be taxable
to the recipients.
SECTION 14.05. Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided:
(a) the Issuer shall compute the adjusted Conversion Price in
accordance with Section 14.04 and shall prepare a certificate signed by
the Treasurer or an Assistant Treasurer, the Controller or an Assistant
Controller of the Issuer setting forth the adjusted Conversion Price
and showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be filed with the
Trustee and at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 3.02; and
(b) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be
required, and as soon as practicable after it is required, such notice
shall be prepared by the Issuer, filed with the Trustee and mailed by
the Issuer to all Holders at their last addresses as they shall appear
in the Security Register.
SECTION 14.06. Notice of Certain Corporate Action.
In case:
(a) the Issuer shall declare a dividend (or any other distribution)
on Common Stock payable otherwise than in cash out of its retained
earnings; or
(b) the Issuer shall authorize the granting to the holders of
Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class or of any other rights; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding shares of Common Stock),
or of any consolidation or merger to which the Issuer is a party and
for
73
which approval of any stockholders of the Issuer is required, or of the
sale or transfer of all or substantially all of the assets of the
Issuer; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Issuer;
then the Issuer shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Securities pursuant to
Section 3.02, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 20 days (or
ten days in any case specified in clause (a) or (b) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the date
on which such reclassification, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up.
The failure to give notice required by this Section or any defect therein shall
not affect the legality or validity of any dividend, distribution, rights,
warrants, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or the vote on any such action.
SECTION 14.07. Issuer to Reserve Common Stock. The Issuer shall at all
times reserve and keep available, free from pre-emptive rights, out of its
authorized but unissued Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common Stock then
issuable upon the conversion of all outstanding Securities.
SECTION 14.08. Taxes on Conversions. The Issuer will pay any and all
transfer taxes that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Securities pursuant thereto. The Issuer shall
not, however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of shares of Common Stock in a name
other than that of the Holder of the Security or Securities to be converted, and
no such issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Issuer the amount of any such tax, or has established
to the satisfaction of the Issuer that such tax has been paid.
74
SECTION 14.09. Covenant as to Common Stock. The Issuer covenants that
all shares of Common Stock which may be issued upon conversion of Securities
will upon issue be fully paid and nonassessable.
SECTION 14.10. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee for cancellation and
the Trustee shall dispose of the same as provided in Section 2.10.
SECTION 14.11. Provisions in Case of Consolidation, Merger or Sale of
Assets. In case of any consolidation of the Issuer with, or merger of the Issuer
into, any other corporation, any merger of another corporation into the Issuer
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Issuer) or
any sale or transfer of all or substantially all of the assets of the Issuer,
the corporation formed by such consolidation or resulting from such merger or
which acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 14.01, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, sale or transfer by a holder of the number of
shares of Common Stock of the Issuer into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Issuer (i) is not a corporation with
which the Issuer consolidated or into which the Issuer merged or which merged
into the Issuer or to which such sale or transfer was made, as the case may be
("constituent corporation"), or an Affiliate of a constituent corporation and
(ii) failed to exercise his rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, sale or transfer (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation, merger, sale or
transfer is not the same for each share of Common Stock of the Issuer held
immediately prior to such consolidation, merger, sale or transfer by others than
a constituent corporation or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purpose of this Section the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer by
each non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section shall similarly apply to successive consolidations,
mergers, sales or transfers.
75
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
-------------------------------
[NAME OF TRUSTEE],
as Trustee
By
-------------------------------
[CORPORATE SEAL]
Attest:
By
-------------------------------
76
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
77
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 , 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
78
Exhibit 5
DAVIS POLK & WARDWELL
450 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017
212-450-4000
FAX: 212-450-4800
August 5, 1999
Murphy Oil Corporation
200 Peach Street
P.O. Box 7000
El Dorado, AK 71731-7000
Ladies and Gentlemen:
You have requested us, as special counsel to Murphy Oil Corporation, to
render our opinion regarding certain matters in connection with the
preparation and filing of a Registration Statement by Murphy Oil Corporation
(the "Company") on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended, with respect to the contemplated issuance
by the Company from time to time of up to $1,000,000,000 aggregate initial
offering price of Common Stock, Preferred Stock (including any Depositary
Shares representing such Preferred Stock), Debt Securities and Warrants
(collectively, the "Securities"). The Debt Securities are to be issued as
senior or subordinated indebtedness of the Company under a senior debt
indenture or a subordinated debt indenture (the "Indentures"). The form of the
Indentures have been filed as exhibits to the Registration Statement.
We are familiar with the Certificate of Incorporation and the By-laws,
each as amended to date, of the Company and have examined the originals, or
copies certified or otherwise identified to our satisfaction, of corporate
records of the Company, statutes and other instruments and documents as the
basis for the opinion expressed herein.
Based upon the foregoing, and having regard for such legal considerations
as we have deemed relevant, we are of the opinion that, (1) with respect to
the Common Stock and the Preferred Stock, when the remaining terms are set by
an officer of the Company pursuant to the authority granted such officer by
the Board of Directors of the Company and have been duly issued and delivered
by the Company and duly paid for by the purchasers thereof, (2) with respect
to the Debt Securities, when the remaining terms are set by an officer of the
Company pursuant to the authority granted such officer by the Board of
Directors of the Company, the Indentures have been duly executed and
delivered, and the Debt Securities have been duly issued in accordance with
the provisions of the Indentures and duly paid for by the purchasers thereof,
and (3) with respect to the Warrants, when the remaining terms are set by an
officer of the Company pursuant to the authority granted such officer by the
Board of Directors of the Company, the warrant agreements have been duly
executed and delivered, and the Warrants have been duly issued and delivered
by the Company and duly paid for by the purchasers thereof, (a) the Debt
Securities and the Warrants will constitute valid and binding obligations of
the Company enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization or
other laws relative to or affecting generally the enforcement of creditor's
rights and by principles of equity, and (b) the Common Stock and the Preferred
Stock will have been validly issued, fully paid and non-assessable.
In connection with our opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any such Security, the Registration
Statement has been declared effective, that the authorization of the
Securities will be applicable to such Security, will not have been modified or
rescinded and there will not have occurred any change in law affecting the
validity or enforceability of such Security. We have also assumed that none of
the terms of any Security to be established subsequent to the date hereof nor
the issuance and delivery of such Security, nor the
compliance by the Company with the terms of such Security, will violate any
applicable law or will result in a violation of any provision of any
instrument or agreement then binding upon the Company, or any restriction
imposed by any court or governmental body having jurisdiction over the
Company.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York, the federal laws of
the United States of America and the General Corporation Law of the State of
Delaware.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement of the Company relating to the Securities and to the
reference to our name in the Prospectus contained therein.
Very truly yours,
/s/ Davis Polk & Wardwell
Exhibit 12(a)
Murphy Oil Corporation and Consolidated Subsidiaries
Computation of Ratio of Earnings to Fixed Charges
(Thousands of dollars except for ratios)
Three Months Ended
March 31, Years Ended December 31,
------------------- -------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
EARNINGS
- --------
Income (loss) from continuing operations
before income taxes $(11,193) 24,810 (8,277) 211,650 216,355 (148,728) 127,710
Deduct income from equity companies (117) (223) (772) (1,136) (1,286) (1,348) (1,129)
Add dividends from equity companies 66 88 757 1,572 1,235 1,267 1,224
Add fixed charges - detailed below 6,587 4,658 21,383 15,647 15,650 16,968 15,252
Add amortization of capitalized interest 686 413 2,172 1,333 1,500 13,305 2,159
Deduct interest capitalized (1,145) (2,550) (7,606) (12,096) (10,202) (9,015) (9,842)
-------- ------ ------ ------- ------- ------ -------
Adjusted earnings (loss) $ (5,116) 27,196 7,657 216,970 223,252 (124,551) 135,374
======== ====== ====== ======= ======= ======= =======
FIXED CHARGES
- -------------
Interest expense (includes amortization of debt
expense and discount or premium related to
indebtedness) $ 5,616 3,876 18,090 12,717 13,120 14,428 12,398
Add estimated interest portion of rent expense 971 782 3,293 2,930 2,530 2,540 2,854
-------- ------ ------ ------- ------- ------ ------
Total fixed charges $ 6,587 4,658 21,383 15,647 15,650 16,968 15,252
======== ====== ====== ======= ======= ====== =======
RATIO OF EARNINGS TO FIXED CHARGES 0.0 5.8 0.4 13.9 14.3 0.0 8.9
- ---------------------------------- === === === ==== ==== === ===
DEFICIENCY (LESS THAN ONE-TO-ONE
COVERAGE) $(11,703) (13,726) (141,519)
======== ======= ========
Exhibit 12(b)
Murphy Oil Corporation and Consolidated Subsidiaries
Computation of Ratio of Earnings Before Special Items to Fixed Charges
(Thousands of dollars except for ratios)
Three Months Ended
March 31, Years Ended December 31,
------------------- -------------------------------------------------
1999 1998 1998 1997 1996 1995 1994
---- ---- ---- ---- ---- ---- ----
EARNINGS
- --------
Income (loss) from continuing operations
before income taxes $(11,193) 24,810 (8,277) 211,650 216,355 (148,728) 127,710
Eliminate (gain) loss from special items before taxes 1,513 0 84,821 5,739 (31,046) 193,739 (21,034)
Deduct income from equity companies (117) (223) (772) (1,136) (1,286) (1,348) (1,129)
Add dividends from equity companies 66 88 757 1,572 1,235 1,267 1,224
Add fixed charges - detailed below 6,587 4,658 21,383 15,647 15,650 16,717 15,252
Add amortization of capitalized interest 686 413 2,172 1,333 1,500 2,982 2,159
Deduct interest capitalized (1,145) (2,550) (7,606) (12,096) (10,202) (9,015) (9,842)
-------- ------ ------ ------- ------- ------ ------
Adjusted earnings (loss) before special items $ (3,603) 27,196 92,478 222,709 192,206 55,614 114,340
======== ====== ====== ======= ======= ====== =======
FIXED CHARGES
- -------------
Interest expense (includes amortization of debt
expense and discount or premium related to
indebtedness) $ 5,616 3,876 18,090 12,717 13,120 14,428 12,398
Less interest expense treated as special item (251)
Add estimated interest portion of rent expense 971 782 3,293 2,930 2,530 2,540 2,854
-------- ------ ------ ------- ------- ------ ------
Fixed charges before special items $ 6,587 4,658 21,383 15,647 15,650 16,717 15,252
======== ====== ====== ======= ======= ====== =======
RATIO OF EARNINGS TO FIXED CHARGES 0.0 5.8 4.3 14.2 12.3 3.3 7.5
- ---------------------------------- === === === ==== ==== === ===
DEFICIENCY (LESS THAN ONE-TO-ONE
COVERAGE) $(10,190)
========
Exhibit 23(b)
Independent Auditors' Consent
The Board of Directors
Murphy Oil Corporation
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Shreveport, Louisiana
August 4, 1999