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Serial Indenture
Dated as of (DATE), 1994
AMONG
CALIFORNIA PETROLEUM TRANSPORT CORPORATION,
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Indenture Trustee,
AND
CHEVRON CORPORATION
__________
$168,500,000
Serial First Preferred Mortgage Notes
Maturing Serially from 1995 to 2005
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TABLE OF CONTENTS
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Page
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PARTIES . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS.
SECTION 1.1 Certain Terms Defined...................... 2
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SERIAL MORTGAGE NOTES.
SECTION 2.1. Authentication and Delivery of
Serial Mortgage Notes . . . . . . . . . . 10
SECTION 2.2. Execution of Serial Mortgage Notes. . . . . 11
SECTION 2.3. Certificate of Authentication . . . . . . . 12
SECTION 2.4. Form, Denomination and Date of Serial
Mortgage Notes; Payments of Interest. . . 12
SECTION 2.5. Registration, Transfer and Exchange . . . . 13
SECTION 2.6. Mutilated, Defaced, Destroyed, Lost and
Stolen Serial Mortgage Notes. . . . . . . 15
SECTION 2.7. Cancellation of Serial Mortgage Notes;
Destruction Thereof . . . . . . . . . . . 16
SECTION 2.8. Temporary Serial Mortgage Notes . . . . . . 16
SECTION 2.9. Serial Mortgage Notes Issuable in Global
Form; Depository . . . . . . . . . . . . 17
ARTICLE THREE
COVENANTS
SECTION 3.1. Payment of Principal and Interest . . . . . 19
SECTION 3.2. Offices for Payments, etc.. . . . . . . . . 20
SECTION 3.3. Appointment to Fill a Vacancy in Office of
Indenture Trustee . . . . . . . . . . . . 20
SECTION 3.4. Paying Agents . . . . . . . . . . . . . . . 20
SECTION 3.5. Reports by California Petroleum . . . . . . 21
SECTION 3.6. Reports by the Indenture Trustee. . . . . . 22
SECTION 3.7. Serial Noteholders' Lists . . . . . . . . . 22
SECTION 3.8. Negative Covenants. . . . . . . . . . . . . 22
SECTION 3.9. Reports by Chevron. . . . . . . . . . . . . 23
ARTICLE FOUR
REMEDIES OF THE INDENTURE TRUSTEE AND
SERIAL NOTEHOLDERS ON INDENTURE EVENT OF DEFAULT.
SECTION 4.1. Indenture Event of Default Defined;
Acceleration of Maturity;
Waiver of Default . . . . . . . . . . . . 25
SECTION 4.2. Collection of Indebtedness by
Indenture Trustee; Indenture Trustee May
Prove Debt. . . . . . . . . . . . . . . . 28
SECTION 4.3. Application of Proceeds . . . . . . . . . . 30
SECTION 4.4. Suits for Enforcement . . . . . . . . . . . 32
SECTION 4.5. Restoration of Rights on Abandonment of
Proceedings . . . . . . . . . . . . . . . 32
SECTION 4.6. Limitations on Suits by Serial Noteholders. 32
SECTION 4.7. Powers and Remedies Cumulative; Delay or
Omission Not Waiver of Default. . . . . . 33
SECTION 4.8. Control by Serial Noteholders . . . . . . . 33
SECTION 4.9. Waiver of Past Defaults . . . . . . . . . . 34
ARTICLE FIVE
CONCERNING THE INDENTURE TRUSTEE.
SECTION 5.1. Duties and Responsibilities of the
Indenture Trustee; During Default;
Prior to Default. . . . . . . . . . . . . 36
SECTION 5.2. Certain Rights of the Indenture Trustee . . 38
SECTION 5.3. Indenture Trustee Not Responsible for
Recitals, Disposition of Serial
Mortgage Notes or Application of
Proceeds Thereof. . . . . . . . . . . . . 39
SECTION 5.4. Indenture Trustee and Agents May Hold
Serial, Mortgage Notes;
Collections, etc. . . . . . . . . . . . . 40
SECTION 5.5. Moneys Held by Indenture Trustee. . . . . . 40
SECTION 5.6. Compensation and Expenses . . . . . . . . . 40
SECTION 5.7. Right of Indenture Trustee to Rely on
Officers' Certificate, etc . . . . . . . 42
SECTION 5.8. Persons Eligible for Appointment as
Indenture Trustee . . . . . . . . . . . . 42
SECTION 5.9. Resignation and Removal; Appointment of
Successor Indenture Trustee . . . . . . . 42
SECTION 5.10. Acceptance of Appointment by Successor
Indenture Trustee . . . . . . . . . . . . 44
SECTION 5.11. Merger, Conversion, Consolidation or
Succession to Business of Indenture
Trust . . . . . . . . . . . . . . . . . . 45
ARTICLE SIX
CONCERNING THE SERIAL NOTEHOLDERS.
SECTION 6.1. Evidence of Action Taken by Serial
Noteholder . . . . . . . . . . . . . . . . 46
SECTION 6.2. Proof of Execution of Instruments and of
Holding of Serial Mortgage Notes;
Record Date. . . . . . . . . . . . . . . . 46
SECTION 6.3. Holders to Be Treated as Owners. . . . . . . 46
SECTION 6.4. Serial Mortgage Notes Deemed Not
Outstanding. . . . . . . . . . . . . . . . 47
SECTION 6.5. Right of Revocation of Action Taken. . . . . 47
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1. Supplemental Indentures Without Consent
of Serial Noteholders. . . . . . . . . . . 48
SECTION 7.2. Supplemental Indentures With Consent of
Serial Noteholders . . . . . . . . . . . . 49
SECTION 7.3. Effect of Supplemental Indenture . . . . . . 50
SECTION 7.4. Documents to Be Given to Indenture Trustee . 51
SECTION 7.5. Notation on Serial Mortgage Notes in
Respect of Supplemental Indentures . . . . 51
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1. Covenant Not to Merge, Consolidate, Sell
or Convey Property Except Under Certain
Conditions . . . . . . . . . . . . . . . . 51
SECTION 8.2. Successor Corporation Substituted . . . . . 52
SECTION 8.3. Opinion of Counsel to Indenture Trustee. . . 52
ARTICLE NINE
SATISFACTION AND DISCHARGE OF
SERIAL INDENTURE; UNCLAIMED MONEYS.
SECTION 9.1. Satisfaction and Discharge of Serial
Indenture. . . . . . . . . . . . . . . . . 52
SECTION 9.2. Application by Indenture Trustee of Funds
Deposited for Payment of Serial
Mortgage Notes . . . . . . . . . . . . . . 53
SECTION 9.3. Repayment of Moneys Held by Paying Agent . . 54
SECTION 9.4. Return of Moneys Held by Indenture
Trustee And Paying Agent Unclaimed for
Two Years. . . . . . . . . . . . . . . . . 54
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1. Incorporators, Stockholders, Officers
and Directors of California Petroleum
Exempt from Individual Liability. . . . . 54
SECTION 10.2. Provisions of Serial Indenture for the
Sole Benefit of Parties and Serial
Noteholders . . . . . . . . . . . . . . . 55
SECTION 10.3. Successors and Assigns of California
Petroleum Bound by Serial Indentur. . . . 55
SECTION 10.4. Notices and Demands on California
Petroleum Indenture Trustee and
Serial Noteholders. . . . . . . . . . . . 55
SECTION 10.5. Officers' Certificates and Opinions of
Counsel; Statements to Be Contained
Therein . . . . . . . . . . . . . . . . . 56
SECTION 10.6. Payments Due on Saturdays, Sundays and
Holidays. . . . . . . . . . . . . . . . . 57
SECTION 10.7. Conflict of Any Provision of Serial
Indenture with Trust Indenture Act. . . . 57
SECTION 10.8. New York Law to Govern. . . . . . . . . . . 58
SECTION 10.9. Counterparts. . . . . . . . . . . . . . . . 58
SECTION 10.10. Effect of Headings. . . . . . . . . . . . . 58
SECTION 10.11. Designated Representative . . . . . . . . . 58
ARTICLE ELEVEN
REDEMPTION OF SERIAL MORTGAGE NOTES.
SECTION 11.1. Mandatory Redemption; Prices . . . . . . . 58
SECTION 11.2. Notice of Redemption; Partial Redemptions. 58
SECTION 11.3. Payment of Serial Mortgage Notes Called
for Redemption . . . . . . . . . . . . . 60
ARTICLE TWELVE
SECURITY.
SECTION 12.1. Security . . . . . . . . . . . . . . . . . 61
SECTION 12.2. Recording, etc . . . . . . . . . . . . . . 61
SECTION 12.3. Protection of the Trust Estate . . . . . . 63
SECTION 12.4. Release of Lien. . . . . . . . . . . . . . 63
EXHIBITS
EXHIBIT A - Form of Serial Mortgage Note
EXHIBIT B - Form of Collateral Agreement
THIS Serial Indenture, dated as of (DATE), 1994 among
CALIFORNIA PETROLEUM TRANSPORT CORPORATION, a Delaware corporation
("California Petroleum"), CHEMICAL TRUST COMPANY OF CALIFORNIA (the "Indenture
Trustee") and CHEVRON CORPORATION, a Delaware corporation ("Chevron"),
W I T N E S E T H :
WHEREAS, capitalized terms used herein shall have the
respective meanings set forth or referred to in Article One hereof;
WHEREAS, California Petroleum has duly authorized the issue of
its Serial Mortgage Notes and, to provide, among other things, for the
authentication, delivery and administration thereof, California Petroleum has
duly authorized the execution and delivery of this Serial Indenture.
WHEREAS, in order to secure its obligations under this Serial
Indenture and the Term Indenture, California Petroleum is entering into the
Collateral Agreement concurrently with this Serial Indenture;
WHEREAS, in order to comply with the provisions of the Trust
Indenture Act, it is necessary that Chevron be a party to this Serial
Indenture;
AND WHEREAS, all things necessary to make the Serial Mortgage
Notes, when executed by California Petroleum and authenticated and delivered
by the Indenture Trustee as in this Serial Indenture provided, the valid,
binding and legal obligations of California Petroleum, and to constitute these
presents a valid indenture and agreement according to its terms, have been
done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Serial Mortgage Notes by the holders thereof, California Petroleum, Chevron
and the Indenture Trustee mutually covenant and agree for the equal and
proportionate benefit of the respective holders from time to time of the
Serial Mortgage Notes as follows:
ARTICLE ONE
DEFINITIONS.
SECTION 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Serial Indenture and of any
indenture supplemental hereto shall have the respective meanings specified in
this Section. All other terms used in this Serial Indenture which are defined
in the Trust Indenture Act or the definitions of which in the Securities Act
are referred to in the Trust Indenture Act (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 Serial Indenture. All
accounting terms used herein and not expressly defined shall have the meanings
given to them in accordance with generally accepted accounting principles, and
the term "generally accepted accounting principles" shall mean such accounting
principles which are generally accepted at the date or time of any computation
or at the date hereof. The words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Serial Indenture as a whole and not to
any particular Article, Section or other subdivision. All references to
Articles or Sections refer to Articles or Sections of this Serial Indenture
unless otherwise indicated. The terms defined in this Article include the
plural as well as the singular.
"Affiliate" means with respect to any Person (the "relevant
Person") (i) any other Person that directly, or indirectly through one or more
intermediaries, controls the relevant Person (a "Controlling Person") or (ii)
any Person (other than the relevant Person) which is controlled by or is under
common control with a Controlling Person. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Allocated Principal Amount" means, when used with reference to
the Serial Mortgage Notes relating to any Vessel at any time, an aggregate
principal amount of Outstanding Serial Mortgage Notes equal to the aggregate
principal amount of the Serial Loan then outstanding under the Serial Loan
Agreement of the related Owner.
"Assignment of Earnings and Insurances" has the meaning set
forth in the Collateral Agreement.
"Assignment of Initial Charter" has the meaning set forth in
the Collateral Agreement.
"Assignment of Management Agreement" has the meaning set forth
in the Collateral Agreement.
"Assignment of Mortgage" has the meaning set forth in the
Collateral Agreement.
"Authorized Financial Officer" of any Person means the Chief
Financial Officer, Treasurer or Controller of such Person.
"Bankruptcy Code" means the United States Bankruptcy Code of
1978, as amended.
"Board of Directors" means either the Board of Directors of
California Petroleum or any committee of such Board duly authorized to act
hereunder.
"Business Day" means any day except a Saturday or a Sunday or
other day on which commercial banks are authorized by law to close in New York
City or in the city and state where the principal offices of the paying agent
appointed pursuant to Section 3.4 are located.
"California Petroleum" means California Petroleum Transport
Corporation, a Delaware corporation.
"Casualty Account" has the meaning set forth in the Collateral
Agreement.
"Chevron" means Chevron Corporation, a Delaware corporation
and, subject to Article Eight, its successors and assigns.
"Chevron Guarantees" means the Initial Charter Guarantees.
"Chevron Transport" means Chevron Transport Corporation, a
Liberian corporation.
"Closing Date" means ____________, 1994.
"Collateral" means the property in which the Collateral
Trustee, in its own right or as assignee of California Petroleum, is granted a
Lien from time to time under any Security Document, which lien or security
interest has not been released in accordance with the terms of the Collateral
Agreement or thereof.
"Collateral Account" has the meaning set forth in the
Collateral Agreement.
"Collateral Agreement" means the Collateral Trust Agreement
dated as of (DATE), 1994 among California Petroleum, the Collateral Trustee,
the Indenture Trustee and the Term Indenture Trustee, as the same may be
amended from time to time.
"Collateral Assignment of Initial Charter" has the meaning set
forth in the Collateral Agreement.
"Collateral Assignment of Initial Charter Guarantee" has the
meaning set forth in the Collateral Agreement.
"Collateral Trustee" means Chemical Trust Company of California, in
its capacity as trustee under the Collateral Agreement, or any other Person
acting from time to time as trustee under the Collateral Agreement.
"Commission" means the Securities and Exchange Commission.
"Compulsory Acquisition" means requisition for title or other
compulsory acquisition of any Vessel (otherwise than by requisition for hire),
capture, seizure, condemnation, destruction, detention or confiscation of such
Vessel by any government or by persons acting or purporting to act on behalf
of any governmental authority.
"Corporate Trust Office" means the office of the Indenture
Trustee at which the corporate trust business of the Indenture Trustee shall,
at any particular time, be principally administered, which office is, at the
date as of which this Serial Indenture is dated, located at 50 California
Street, 10th Floor, San Francisco, California, 94111.
"Default" means any Indenture Event of Default or any event or
condition which, with the giving of notice or lapse of time, or both would
constitute an Indenture Event of Default.
"Default Rate" means a rate per annum for each day from the
date of a default in any payment hereunder until such payment shall be paid in
full equal to 1.50% above LIBOR at the commencement of such period.
"Depository" means the depository of the Global Securities
representing the Serial Mortgage Notes and any successor to such Depository
appointed pursuant to Section 2.9(c). The Depositary initially shall be
Depository Trust Company, as New York corporation.
"Enforcement Notice" means a notice delivered to the Collateral
Trustee pursuant to Section 4.10.
"Equity Account" has the meaning set forth in the Collateral
Agreement.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Global Security" means the Serial Mortgage Note or Notes
registered in the name of the Depository or its nominee in accordance with
Article Two and bearing the legend prescribed in Section 2.9(a).
"Holder", "holder of Serial Mortgage Notes", "Serial
Noteholder" or other similar terms means the registered holder of any Serial
Mortgage Note.
"Indenture Event of Default" means any event or condition
specified as such in Section 4.1 which shall have continued for the period of
time, if any, therein designated.
"Indenture Trustee" means Chemical Trust Company of California,
in its capacity as trustee under this Serial Indenture, or any other Person
acting from time to time as trustee hereunder.
"Initial Charter" has the meaning set forth in the Collateral
Agreement.
"Initial Charter Guarantee" has the meaning set forth in the
Collateral Agreement.
"Initial Charterer" means, for each Initial Charter, Chevron
Transport as the charterer thereunder, and any permitted successor or assignee
thereof.
"Initial Revenue Account" has the meaning set forth in the
Collateral Agreement.
"Issue of One Debenture" has the meaning set forth in the
Collateral Agreement.
"LIBOR" means the rate calculated on the basis of the offered
rates for deposits in dollars for a month period which appear on the Reuters
Screen LIBO Page as of 11:00 a.m., London time, on the date that is two London
Banking Days preceding the date of calculation. If at least two such offered
rates appear on the Reuters Screen LIBO Page, LIBOR will be the arithmetic
mean of such offered rates (rounded to the nearest .0001 percentage point).
If, at any time of determination, the Reuters Screen LIBO Page is not
available, LIBOR will be calculated as the average (rounded upward, if
necessary, to the next higher 1/16 of 1%) of the respective ratio per annum at
which deposits in dollars for a one month period are offered to each of three
reference banks in the London interbank market at approximately 11:00 a.m.,
London time,on the date that is two London Banking Days preceding the date of
calculation. Each of Chevron and the Indenture Trustee will select a
reference bank and the third reference bank will be selected by Chevron and the
Indenture Trustee together or, failing agreement, by the previously selected
reference banks together.
"Lien" means with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of
such asset. For the purposes of this Collateral Agreement, a Person shall be
deemed to own subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to such
asset.
"Loan Agreements" means the Serial Loan Agreements and the Term
Loan Agreements, collectively.
"London Banking Day" means any day on which dealings in
deposits in United States dollars are carried on in the London interbank
market and on which commercial banks are open for domestic and international
business (including dealings in dollar deposits) in London and New York.
"Management Agreement" has the meaning set forth in the
Collateral Agreement.
"Mortgage" means, for each Vessel, the First Preferred Ship
Mortgage for such Vessel, dated the date of the related Initial Charter,
between the related Owner and California Petroleum, as the same may be amended
from time to time.
"Mortgage Event of Default" means, for any Mortgage, each of
the events designated as an "Event of Default" in Section 5.01 of such
Mortgage.
"Officers' Certificate" means a certificate signed by a
Responsible Officer of California Petroleum or Chevron, as the case may be,
and delivered to the Indenture Trustee. Each such certificate shall comply
with Section 314 of the Trust Indenture Act and include the statements
provided for in Section 10.5.
"Operating Account" has the meaning set forth in the Collateral
Agreement.
"Opinion of Counsel" means an opinion in writing signed by
legal counsel satisfactory to the Indenture Trustee (who may be an employee of
or counsel to Chevron). Each such opinion shall comply with Section 314 of
the Trust Indenture Act and include the statements provided for in Section
10.5, if and to the extent required hereby.
"Original issue date" of any Serial Mortgage Note (or portion
thereof) means the earlier of (a) the date of such Serial Mortgage Note or (b)
the date of any Serial Mortgage Note (or portion thereof) for which such Serial
Mortgage Note was issued (directly or indirectly) on registration of transfer,
exchange or substitution.
"Outstanding", when used with reference to Serial Mortgage
Notes, shall, subject to the provisions of Section 6.4, mean, as of any
particular time, all Serial Mortgage Notes authenticated and delivered by the
Indenture Trustee under this Serial Indenture, except
(a) Serial Mortgage Notes theretofore canceled by the
Indenture Trustee or delivered to the Indenture Trustee for
cancellation;
(b) Serial Mortgage Notes, or portions thereof, for the
payment or redemption of which moneys in the necessary amount shall
have been deposited in trust with the Indenture Trustee or with any
paying agent, provided that if such Serial Mortgage Notes 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 Indenture Trustee shall have been made for giving such notice;
and
(c) Serial Mortgage Notes in substitution for which other
Serial Mortgage Notes shall have been authenticated and delivered, or
which shall have been paid, pursuant to the terms of Section 2.6
(unless proof satisfactory to the Indenture Trustee is presented that
any of such Serial Mortgage Notes is held by a person in whose hands
such Serial Mortgage Note is a legal, valid and binding obligation of
California Petroleum).
"Owner" means CalPetro Tankers (Bahamas I) Limited, in the case
of the Vessel m.t. Samuel Ginn, CalPetro Tankers (Bahamas II) Limited, in the
case of the Vessel m.t. Condoleezza Rice, CalPetro Tankers (IOM) Limited, in
the case of the Vessel m.t. Chevron Mariner, or CalPetro Tankers (Bahamas III)
Limited, in the case of the Vessel m.t. William E. Crain.
"Permitted Investments" has the meaning set forth in the
Collateral Agreement.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Pledged Stock" has the meaning set forth in the Collateral
Agreement.
"Rating Agencies" means Moody's Investors Service, Inc.,
Standard & Poor's Ratings Group and Duff & Phelps Credit Rating Co.
"Related Security Documents" means, at any time, the Security
Documents relating to the Vessels for which the Initial Charters are in effect
at such time and under which the first termination date has not occurred.
"Responsible Officer" means the president or any other officer
with authority of at least a vice president; or, in the case of the Indenture
Trustee means an officer or assistant officer of the Indenture Trustee in its
Corporate Trust Department.
"Second Revenue Account" has the meaning set forth in the
Collateral Agreement.
"Secured Instruments" has the meaning set forth in the
Collateral Agreement.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Security Documents" means the Collateral Agreement, the Loan
Agreements, the Mortgages, the Assignments of Mortgage, the Assignments of
Initial Charter, the Collateral Assignments of Initial Charter, the
Assignments of Earnings and Insurances, the Assignments of Initial Charter
Guarantee, the Collateral Assignments of Initial Charter Guarantee, the
Assignments of Management Agreement, each Issue of One Debenture, the Stock
Pledge, the Vessel Purchase Agreement Assignments, and any additional security
agreement, assignment or mortgage document entered into by California
Petroleum from time to time in connection with the Secured Instruments or
received by California Petroleum from any Owner in connection with such
Owner's Loan Agreements.
"Serial Indenture" means this Serial Indenture dated as of (DATE),
1994 among California Petroleum, the Indenture Trustee, and, solely for
purposes of the Trust Indenture Act, Chevron, as the same may be amended from
time to time.
"Serial Loan Agreement" means, for any Owner, the Serial Loan
Agreement dated as of (DATE), 1994 between such Owner and California
Petroleum, as the same may be amended from time to time.
"Serial Loans" has, for any Owner, the meaning set forth in the
Serial Loan Agreement entered into by such Owner.
"Serial Mortgage Note" or "Serial Mortgage Notes" means any
Serial First Preferred Mortgage Note or Notes, as the case may be,
authenticated and delivered under this Serial Indenture.
"Stock Pledge" has the meaning set forth in the Collateral
Agreement.
"Term Indenture" means the Term Indenture dated as of (DATE),
1994 between California Petroleum and the Term Indenture Trustee, as the same
may be amended from time to time.
"Term Indenture Trustee" means Chemical Trust Company of
California or any other Person from time to time acting as the trustee under
the Term Indenture.
"Term Loan Agreement" means, for any Owner, the Term Loan
Agreement dated as of (DATE), 1994 between such Owner and California
Petroleum, as the same may be amended from time to time.
"Term Mortgage Notes" has the meaning set forth in the Term
Indenture.
"Termination Account" has the meaning set forth in the
Collateral Agreement.
"Total Loss" means (a) an actual or constructive or compromised
or arranged total loss of a Vessel, (b) a Compulsory Acquisition of a Vessel
or (c) if so declared by Chevron Transport at any time and in its sole
discretion a requisition for hire of the Vessel for a period in excess of 180
days.
"Trust Accounts" means the Initial Revenue Account, the Second
Revenue Account, the Termination Account, the Operating Account, the Equity
Account, the Casualty Account and the Collateral Account.
"Trust Estate" means the property rights and privileges
described in the Granting Clause of the Collateral Agreement.
"Trust Funds" means the funds deposited in the Trust Accounts.
"Trust Indenture Act" means the United States Trust Indenture
Act of 1939, as amended.
"UCC" means the Uniform Commercial Code as in effect on the
date hereof in the State of New York or any other applicable jurisdiction.
"Vessel Purchase Agreement" has the meaning set forth in the
Collateral Agreement.
"Vessel Purchase Agreement Assignment" has the meaning set
forth in the Collateral Agreement.
"Vessels" means, collectively, the four Suezmax-size tankers to
be acquired by the Owners and chartered to the Initial Charterer pursuant to
the Initial Charters.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND
REGISTRATION OF SERIAL MORTGAGE NOTES.
SECTION 2.1 Authentication and Delivery of Serial Mortgage
Notes. Upon the execution and delivery of this Serial Indenture, or from time
to time thereafter, Serial Mortgage Notes in an aggregate principal amount not
in excess of $168,500,000 (except as otherwise provided in Section 2.6) may be
executed by California Petroleum and delivered to the Indenture Trustee for
authentication, and an authorized officer of the Indenture Trustee shall
thereupon authenticate and deliver said Serial Mortgage Notes to or upon the
written order of California Petroleum, signed by both (a) its President or any
Vice President and (b) by its Treasurer or any Assistant Treasurer without any
further action by California Petroleum.
The Serial Mortgage Notes initially shall be issued in the
principal amounts, interest rates and maturities stated below:
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 1995;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 1996;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 1997;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 1998;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 1999;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2000;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2001;
$18,160,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2002;
$12,950,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2003;
$7,740,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2004; and
$2,530,000 principal amount of __%
Serial First Preferred Mortgage Notes Due 2005.
SECTION 2.2 Execution of Serial Mortgage Notes. The Serial
Mortgage Notes shall be signed on behalf of California Petroleum by both (a)
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 California Petroleum may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Serial Mortgage
Notes. 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 Serial Mortgage Note which has been duly
authenticated and delivered by the Indenture Trustee.
In case any officer of California Petroleum who shall have
signed any of the Serial Mortgage Notes shall cease to be such officer before
the Serial Mortgage Note so signed shall be authenticated and delivered by the
Indenture Trustee or disposed of by California Petroleum, such Serial Mortgage
Note nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Serial Mortgage Note had not ceased to be such
officer of California Petroleum; and any Serial Mortgage Note may be signed on
behalf of California Petroleum by such persons as, at the actual date of the
execution of such Serial Mortgage Note, shall be the proper officers of
California Petroleum, although at the date of the execution and delivery of
this Serial Indenture any such person was not such officer.
SECTION 2.3 Certificate of Authentication. Only such Serial
Mortgage Notes as shall bear thereon a certificate of authentication
substantially in the form set forth in Exhibit A hereto executed by the
Indenture Trustee by manual signature of one of its authorized officers, shall
be entitled to the benefits of this Serial Indenture or be valid or obligatory
for any purpose. Such certificate by the Indenture Trustee upon any Serial
Mortgage Note executed by California Petroleum shall be conclusive evidence
that the Serial Mortgage Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Serial Indenture.
SECTION 2.4 Form, Denomination and Date of Serial Mortgage
Notes; Payments of Interest. The Serial Mortgage Notes and the Indenture
Trustee's certificates of authentication shall be substantially in the form
attached hereto as Exhibit A and incorporated by reference herein. The Serial
Mortgage Notes shall be issuable as registered securities without coupons and
in denominations provided for in such form of Serial Mortgage Note. The
Serial Mortgage Notes shall be numbered, lettered, or otherwise distinguished
in such manner or in accordance with such plans as the officers of California
Petroleum executing the same may determine with the approval of the Indenture
Trustee.
Any of the Serial Mortgage Notes may be issued with appropriate
insertions, omissions, substitutions and variations, and may have imprinted or
otherwise reproduced thereon such legend or legends, not inconsistent with the
provisions of this Serial Indenture, as may be required to comply with any law
or with any rules or regulations pursuant thereto, or with the rules of any
securities market in which the Serial Mortgage Notes are admitted to trading,
or to conform to general usage.
Each Serial Mortgage Note shall be dated the date of its
authentication, shall bear interest from the applicable date and shall be
payable on the dates specified on the face of the form of Serial Mortgage
Note. Interest will accrue at the Default Rate on any overdue payment of
principal of, interest or any other amount payable on any Serial Mortgage Note
from the due date for such payment to the date such amount is paid in full and
shall be payable on demand.
The person in whose name any Serial Mortgage Note is registered
at the close of business on any record date with respect to any interest
payment date shall be entitled to receive the interest, if any, payable on
such interest payment date notwithstanding any transfer or exchange of such
Serial Mortgage Note subsequent to the record date and prior to such interest
payment date, except if and to the extent California Petroleum shall default
in the payment of the interest due on such interest payment date, in which
case such defaulted interest shall be paid to the persons in whose names
Outstanding Serial Mortgage Notes 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 California Petroleum to the holders of Serial
Mortgage Notes 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 if such interest
payment date is the first day of a calendar month, the fifteenth day of the
next preceding calendar month and shall mean, 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 2.5 Registration, Transfer and Exchange. California
Petroleum will keep at each office or agency to be maintained for the purpose
as provided in Section 3.2 a register or registers in which, subject to such
reasonable regulations as it may prescribe, it will register, and will
register the transfer of, Serial Mortgage Notes as provided in this Article.
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 Indenture Trustee.
Upon due presentation for registration of transfer of any
Serial Mortgage Note at each such office or agency, California Petroleum shall
execute and the Indenture Trustee shall authenticate and deliver in the name
of the transferee or transferees a new Serial Mortgage Note or Serial Mortgage
Notes in authorized denominations for a like aggregate principal amount.
Any Serial Mortgage Note or Serial Mortgage Notes may be
exchanged for a Serial Mortgage Note or Serial Mortgage Notes in other
authorized denominations, in an equal aggregate principal amount. Serial
Mortgage Notes to be exchanged shall be surrendered at each office or agency
to be maintained by California Petroleum for the purpose as provided in
Section 3.2, and California Petroleum shall execute and the Indenture Trustee
shall authenticate and deliver in exchange therefor the Serial Mortgage Note or
Serial Mortgage Notes which the Serial Noteholder making the exchange shall be
entitled to receive, bearing numbers not contemporaneously outstanding.
All Serial Mortgage Notes presented for registration of
transfer, exchange, redemption or payment shall (if so required by California
Petroleum or the Indenture Trustee) be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to
California Petroleum and the Indenture Trustee duly executed by, the holder or
his attorney duly authorized in writing.
California Petroleum 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 Serial Mortgage Notes. No
service charge shall be made for any such transaction.
California Petroleum shall not be required to exchange or
register a transfer of (a) any Serial Mortgage Notes for a period of 15 days
next preceding the first mailing of notice of redemption of Serial Mortgage
Notes to be redeemed, or (b) any Serial Mortgage Notes selected, called or
being called for redemption except, in the case of any Serial Mortgage Note
where public notice has been given that such Serial Mortgage Note is to be
redeemed in part, the portion thereof not so to be redeemed.
All Serial Mortgage Notes issued upon any transfer or exchange
of Serial Mortgage Notes shall be valid obligations of California Petroleum,
evidencing the same debt, and entitled to the same benefits under this Serial
Indenture, as the Serial Mortgage Notes surrendered upon such transfer or
exchange.
SECTION 2.6 Mutilated, Defaced, Destroyed, Lost and Stolen
Serial Mortgage Notes. In case any temporary or definitive Serial Mortgage
Note shall become mutilated, defaced or be apparently destroyed, lost or
stolen, California Petroleum in its discretion may execute, and upon the
written request of any officer of California Petroleum, the Indenture Trustee
shall authenticate and deliver, a new Serial Mortgage Note, bearing a number
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Serial Mortgage Note, or in lieu of and substitution for
the Serial Mortgage Note so apparently destroyed, lost or stolen. In every
case the applicant for a substitute Serial Mortgage Note shall furnish to
California Petroleum and to the Indenture Trustee and any agent of California
Petroleum or the Indenture 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 evidence to their satisfaction
of the apparent destruction, loss or theft of such Serial Mortgage Note and of
the ownership thereof.
Upon the issuance of any substitute Serial Mortgage Note,
California Petroleum 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 Indenture Trustee)
connected therewith. In case any Serial Mortgage Note which has matured or is
about to mature, or has been called for redemption in full, shall become
mutilated or defaced or be apparently destroyed, lost or stolen, California
Petroleum may, instead of issuing a substitute Serial Mortgage Note, pay or
authorize the payment of the same (without surrender thereof except in the
case of a mutilated or defaced Serial Mortgage Note), if the applicant for
such payment shall furnish to California Petroleum and to the Indenture
Trustee and any agent of California Petroleum or the Indenture Trustee such
security or indemnity as any of them may require to save each of them harmless
from all risks, however remote, and, in every case of apparent destruction,
loss or theft, the applicant shall also furnish to California Petroleum and
the Indenture Trustee and any agent of California Petroleum or the Indenture
Trustee evidence to their satisfaction of the apparent destruction, loss or
theft of such Serial Mortgage Note and of the ownership thereof.
Every substitute Serial Mortgage Note issued pursuant to the
provisions of this Section by virtue of the fact that any Serial Mortgage Note
is apparently destroyed, lost or stolen shall constitute an additional
contractual obligation of California Petroleum, whether or not the apparently
destroyed, lost or stolen Serial Mortgage Note shall be at any time
enforceable by anyone and shall be entitled to all the benefits of (but shall
be subject to all the limitations of rights set forth in) this Serial
Indenture equally and proportionately with any and all other Serial Mortgage
Notes duly authenticated and delivered hereunder. All Serial Mortgage Notes
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 apparently destroyed, lost or
stolen Serial Mortgage Notes 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 2.7 Cancellation of Serial Mortgage Notes; Destruction
Thereof. All Serial Mortgage Notes surrendered for payment, redemption,
registration of transfer or exchange, if surrendered to California Petroleum
or any agent of California Petroleum or the Indenture Trustee, shall be
delivered to the Indenture Trustee for cancellation or, if surrendered to the
Indenture Trustee, shall be canceled by it; and no Serial Mortgage Notes shall
be issued in lieu thereof except as expressly permitted by any of the
provisions of this Serial Indenture. The Indenture Trustee shall destroy
canceled Serial Mortgage Notes held by it and deliver a certificate of
destruction to California Petroleum. If California Petroleum shall acquire
any of the Serial Mortgage Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Serial
Mortgage Notes unless and until the same are delivered to the Indenture
Trustee for cancellation.
SECTION 2.8 Temporary Serial Mortgage Notes. Pending the
preparation of definitive Serial Mortgage Notes, California Petroleum may
execute and the Indenture Trustee shall authenticate and deliver temporary
Serial Mortgage Notes (printed, lithographed, typewritten or otherwise
reproduced, in each case in form satisfactory to the Indenture Trustee).
Temporary Serial Mortgage Notes shall be issuable as registered Serial
Mortgage Notes without coupons, of any authorized denomination, and
substantially in the form of the definitive Serial Mortgage Notes but with
such omissions, insertions and variations as may be appropriate for temporary
Serial Mortgage Notes, all as may be determined by California Petroleum with
the concurrence of the Indenture Trustee. Temporary Serial Mortgage Notes may
contain such reference to any provisions of this Serial Indenture as may be
appropriate. Every temporary Serial Mortgage Note shall be executed by
California Petroleum and be authenticated by the Indenture Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Serial Mortgage Notes. Without unreasonable delay California
Petroleum shall execute and shall furnish definitive Serial Mortgage Notes and
thereupon temporary Serial Mortgage Notes may be surrendered in exchange
therefor without charge at each office or agency to be maintained by
California Petroleum for the purpose pursuant to Section 3.2, and the Indenture
Trustee shall authenticate and deliver in exchange for such temporary Serial
Mortgage Notes a like aggregate principal amount of definitive Serial Mortgage
Notes of authorized denominations. Until so exchanged the temporary Serial
Mortgage Notes shall be entitled to the same benefits under this Serial
Indenture as definitive Serial Mortgage Notes.
SECTION 2.9 Serial Mortgage Notes Issuable in Global Form;
Depository. At the sole option of Chevron, this Section shall apply to the
Serial Mortgage Notes, and to the extent that the provisions of this Section
conflict with any other provisions of this Serial Indenture, the provisions of
this Section shall control.
(a) California Petroleum shall execute, and the Indenture
Trustee shall authenticate and deliver, in each case in accordance with this
Article, one or more Global Securities for each maturity specified in Section
2.1 which shall: (i) represent and be denominated in an aggregate amount
equal to the aggregate principal amount of the Serial Mortgage Notes to be
represented thereby, (ii) be registered in the name of the Depository or its
nominee, (iii) be deposited with the Indenture Trustee as custodian for the
Depository and (iv) bear a legend substantially to the following effect:
"Unless and until this Serial Mortgage Note is presented by an authorized
representative of the Depository Trust Company ("DTC"), to California Transport
Corporation or its agents for registration of transfer, exchange or payment,
and any Serial Mortgage Note issued is registered in the name of Cede & Co. or
to such other entity or such other name as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co.), any
transfer, pledge or other use hereof for value or otherwise by or to any
Person is wrongful since the registered owner hereof, Cede & Co., has an
interest herein." The notation of the record owner's interest in such Global
Security upon the original issuance thereof shall be deemed to be delivered in
connection with the original issuance of each beneficial owner's interest in
such Global Security. Without limiting the foregoing, California Petroleum
and the Indenture Trustee shall have no responsibility, obligation or
liability with respect to: (x) the maintenance, review or accuracy of the
records of the Depository or of any of its participating organizations with
respect to any ownership interest in or payments with respect to such Global
Security, (y) any communication with or delivery of any notice (including
notices of redemption) with respect to the Serial Mortgage Notes represented
by the Global Security to any Person having any ownership interest in such
Global Security or to any of the Depository's participating organizations or
(z) any payment made on account of any beneficial ownership interest in such
Global Security.
(b) If any Serial Mortgage Note is issuable in the form of a
Global Security or Securities, each such Global Security may provide that it
shall represent the aggregate amount of Outstanding Serial Mortgage Notes from
time to time endorsed thereon and may also provide that the aggregate amount
of Outstanding Serial Mortgage Notes represented thereby may from time to time
be reduced to reflect exchanges. Any endorsement of a Global Security to
reflect the amount of Outstanding Serial Mortgage Notes represented thereby
shall be made by the Indenture Trustee and in such a manner as shall be
specified on such Global Security. Any instructions by California Petroleum
with respect to a Global Security, after its initial issuance, shall be in
writing but need not comply with Section 10.5 of this Serial Indenture.
(c) The Depository must at all times be a clearing agency
registered under the Exchange Act, and any other applicable statute or
regulation. If at any time the Depository notifies California Petroleum,
Chevron and the Indenture Trustee that it is unwilling or unable to continue
as the depository or if at any time the Depository shall no longer be eligible
under this Section 2.9, Chevron shall appoint a successor Depository. If a
successor Depository is not appointed by Chevron within 90 days after Chevron
receives such notice or learns of such ineligibility, California Petroleum
shall execute and California Petroleum shall direct the Indenture Trustee to
authenticate and deliver definitive Serial Mortgage Notes in authorized
denominations in exchange for the Global Security or Securities. Upon receipt
of such direction, the Indenture Trustee shall thereupon authenticate and
deliver the definitive Serial Mortgage Notes in the same aggregate principal
amount as the Global Security or Securities representing such Serial Mortgage
Notes in exchange for such Global Security or Securities, in accordance with
the provisions of subsection (e) of this Section 2.9, without any further
corporate action by California Petroleum.
(d) Chevron may at any time and in its sole discretion
determine that the Serial Mortgage Notes issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event, California Petroleum will execute and upon receipt
of a written order from California Petroleum, the Indenture Trustee shall
thereupon authenticate and deliver Serial Mortgage Notes in definitive form
and in authorized denominations in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such Serial
Mortgage Notes in exchange for such Global Security or Securities, in
accordance with the provisions of subsection (e) of this Section 2.9 without
any further corporate action by California Petroleum.
(e) Upon any exchange hereunder of the Global Security or
Securities for Serial Mortgage Notes in definitive form, such Global Security
or Securities shall be canceled by the Indenture Trustee. Serial Mortgage
Notes issued hereunder in exchange for the Global Security or Serial Mortgage
Notes shall be registered in such names and in such authorized denominations
as the Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Indenture Trustee. The
Indenture Trustee shall deliver such definitive Serial Mortgage Notes in
exchange for Global Security or Serial Mortgage Notes to the Persons in whose
name such definitive Serial Mortgage Notes have been registered in accordance
with the directions of the Depository.
ARTICLE THREE
COVENANTS
SECTION 3.1. Payment of Principal and Interest. California
Petroleum covenants and agrees that it will duly and punctually pay or cause
to be paid the principal of, and interest on, each of the Serial Mortgage
Notes at the place or places, at the respective times and in the manner
provided in this Serial Indenture and the Serial Mortgage Notes. California
Petroleum covenants and agrees to pay on demand interest at the Default Rate
on any overdue payment of principal of, interest or any other amount payable
on any Serial Mortgage Note from the due date for such payment to the date
such amount is paid in full.
SECTION 3.2 Offices for Payments, etc. So long as any of the
Serial Mortgage Notes remain Outstanding, California Petroleum will maintain
in New York, the following: (a) an office or agency where the Serial Mortgage
Notes may be presented for payment, (b) an office or agency where the Serial
Mortgage Notes may be presented for registration of transfer and for exchange
as in this Serial Indenture provided and (c) an office or agency where notices
and demands to or upon California Petroleum in respect of the Serial Mortgage
Notes or of this Serial Indenture may be served. California Petroleum will
give to the Indenture Trustee written notice of the location of any such
office or agency and of any change of location thereof. California Petroleum
hereby initially designates the Corporate Trust Office of the Indenture
Trustee as the office or agency for each such purpose. In case California
Petroleum shall fail to maintain any such office or agency or shall fail to
give such notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served at the
Corporate Trust Office.
SECTION 3.3 Appointment to Fill a Vacancy in Office of
Indenture Trustee. California Petroleum, whenever necessary to avoid or fill
a vacancy in the office of Indenture Trustee, will, with the consent of
Chevron, appoint, in the manner provided in Section 5.9, an Indenture Trustee,
so that there shall at all times be an Indenture Trustee hereunder.
SECTION 3.4 Paying Agents. Whenever the Indenture Trustee
shall appoint a paying agent, it will cause such paying agent to execute and
deliver an instrument in which such agent shall agree with the Indenture
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 Serial
Mortgage Notes (whether such sums have been paid to it by California
Petroleum or by any other obligor on the Serial Mortgage Notes) in
trust for the benefit of the holders of the Serial Mortgage Notes or
of the Indenture Trustee, and
(b) that it will give the Indenture Trustee notice of any
failure by California Petroleum (or by any other obligor on the
Serial Mortgage Notes) to make any payment of the principal of or
interest on the Serial Mortgage Notes when the same shall be due and
payable.
So long as the Collateral Agreement is in effect, the paying agent for the
Serial Mortgage Notes shall be the Collateral Trustee pursuant to and in
accordance with the provisions of the Collateral Agreement and hereof.
Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section are subject to the
provisions of Sections 9.3 and 9.4.
SECTION 3.5 Reports by California Petroleum. California
Petroleum covenants:
(a) to file with the Indenture Trustee, within 15 days after
California Petroleum is required to file the same with the
Commission, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of
the foregoing as the Commission may from time to time by rules and
regulations prescribe) which California Petroleum may be required to
file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, or, if California Petroleum is not required to file
information, documents, or reports pursuant to either of such
Sections of the Exchange Act, then to file with the Indenture Trustee
and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which
may be required pursuant to Section 13 of the Exchange Act, or, in
respect of a security listed and registered on a national securities
exchange, as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents, and reports
with respect to compliance by California Petroleum with the
conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations;
(c) to transmit to the holders of the Serial Mortgage Notes
in the manner and to the extent required by Section 313(c) of the
Trust Indenture Act, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and
reports required to be filed by California Petroleum pursuant to
subsections (a) and (b) of this Section 3.5 as may be required by
rules and regulations prescribed from time to time by the Commission;
and
(d) furnish to the Indenture Trustee, on or before each
August 1, commencing in 1995, a brief certificate from the principal
executive officer, principal financial officer or principal accounting
officer of California Petroleum as to his or her knowledge of
California Petroleum's compliance with all conditions and covenants
under this Indenture. For purposes of this subsection (d), such
compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 3.6 Reports by the Indenture Trustee. The Indenture
Trustee shall on or before each August 1, commencing in 1995, transmit in the
manner and to the extent required by Section 313(c) of the Trust Indenture
Act, any report required by Section 313(a) of the Trust Indenture Act to be
transmitted by the Indenture Trustee to the holders of the Serial Mortgage
Notes.
SECTION 3.7 Serial Noteholders' Lists. If and so long as the
Indenture Trustee shall not be the Serial Mortgage Note registrar, California
Petroleum will furnish or cause to be furnished to the Indenture Trustee a
list in such form as the Indenture Trustee may reasonably require of the names
and addresses of the holders of the Serial Mortgage Notes pursuant to Section
312 of the Trust Indenture Act (a) semi-annually not more than 15 days after
each record date for the payment of semi-annual interest on the Serial
Mortgage Notes, as hereinabove specified, as of such record date, and (b) at
such other times as the Indenture Trustee may request in writing, within
thirty days after receipt by California Petroleum of any such request as of a
date not more than 15 days prior to the time such information is furnished.
SECTION 3.8 Negative Covenants. California Petroleum will not:
(a) create, incur, assume or issue, directly or
indirectly, guarantee or in any manner become, directly or
indirectly, liable for or with respect to the payment of any
indebtedness, except for its obligations under this Serial Indenture
and the Serial Mortgage Notes and the Term Indenture and the Term
Mortgage Notes;
(b) engage in any business other than the issuance of
the Serial Mortgage Notes and the Term Mortgage Notes and making the
loans to the Owners in accordance with California Petroleum's charter
and by-laws;
(c) (i) commence any case, proceeding or other
action under any existing or future bankruptcy, insolvency or similar
law seeking to have an order for relief entered with respect to it,
or seeking reorganization, arrangement, adjustment, winding up,
liquidation, dissolution, composition or other relief with respect to
it or its debts, (ii) seek appointment to a receiver, trustee,
custodian or other similar official for it or any part of its assets,
(iii) make a general assignment for the benefit of creditors or (iv)
take any action in furtherance of, or consenting or acquiescing in,
any of the foregoing;
(d) create, incur, assume or suffer to exist any Lien
on any of its assets or properties or on any of the Collateral,
except for the Liens created in connection with the Serial Indenture,
the Term Indenture and the Collateral Agreement;
(e) consolidate with, or merge with or into, any
other Person or convey or transfer to any Person all or any part of
the Collateral;
(f) (i) declare or pay any dividend or other
distribution on any shares of its respective capital stock, (ii) make
any loans or advances to any Affiliate of California Petroleum or
(iii) purchase, redeem or otherwise acquire or retire for value any
shares of its respective capital stock; and
(g) make any capital contributions, advances or
loans to, or investments or purchases of capital stock in, any
Person, except for its loan to each Owner.
SECTION 3.9 Reports by Chevron. Chevron covenants:
(a) to file with the Indenture Trustee, within 15 days after
Chevron is required to file the same with the Commission, copies of
the annual reports and of the information, documents, and other
reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe)
which Chevron may be required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act, or, if Chevron is not
required to file information, documents, or reports pursuant to either
of such Sections of the Exchange Act, then to file with the Indenture
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents, and reports which
may be required pursuant to Section 13 of the Exchange Act, or, in
respect of a security listed and registered on a national securities
exchange, as may be prescribed from time to time in such rules and
regulations;
(b) to file with the Indenture Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such additional information, documents, and reports
with respect to compliance by Chevron with the conditions and
covenants provided for in this Indenture as may be required from time
to time by such rules and regulations;
(c) to transmit to the holders of the Serial Mortgage Notes
in the manner and to the extent required by Section 313(c) of the
Trust Indenture Act, within 30 days after the filing thereof with the
Indenture Trustee, such summaries of any information, documents and
reports required to be filed by Chevron pursuant to subsections (a)
and (b) of this Section 4.03 as may be required by rules and
regulations prescribed from time to time by the Commission; and
(d) furnish to the Indenture Trustee, on or before each
August, commencing in 1995, a brief certificate from the principal
executive officer, principal financial officer or principal accounting
officer of Chevron as to his or her knowledge of Chevron's compliance
with all conditions and covenants under this Serial Indenture. For
purposes of this subsection (d), such compliance shall be determined
without regard to any period of grace or requirement of notice
provided under this Indenture.
ARTICLE FOUR
REMEDIES OF THE INDENTURE TRUSTEE AND
SERIAL NOTEHOLDERS ON INDENTURE EVENT OF DEFAULT.
SECTION 4.1 Indenture Event of Default Defined; Acceleration
of Maturity; Waiver of Default. An Indenture Event of Default means any of
the following events (whatever the reason for such Indenture 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) any Mortgage Event of Default under a Mortgage that is a
Related Security Document shall have occurred and be continuing;
(b) default in the payment of all or any part of the principal
of or interest on any of the Serial Mortgage Notes as and when such
payment becomes due and payable either at maturity, upon any
redemption, by declaration or otherwise and the continuance of such
default for a period of two Business Days;
(c) failure on the part of California Petroleum duly to
observe or perform in any material respect any of the other
agreements or covenants on the part of California Petroleum contained
in the Serial Mortgage Notes, this Serial Indenture, the Related
Security Documents or any document or certificate delivered pursuant
thereto for a period of 30 days after the earlier of (i) actual
knowledge by California Petroleum of such failure and (ii) the date
on which written notice specifying such failure and stating that such
notice is a "Notice of Default" hereunder has been given by
registered or certified mail, return receipt requested, to California
Petroleum by the Indenture Trustee, or to California Petroleum and
the Indenture Trustee by the holders of at least 25% in aggregate
principal amount of the Serial Mortgage Notes at the time Outstanding;
(d) any representation or warranty of California Petroleum
made in this Serial Indenture, any Related Security Document or any
document or certificate delivered pursuant thereto proves to have been
inaccurate in any material respect when made, remains inaccurate in
such material respect for a period of 30 days after the earlier of
(i) actual knowledge of such inaccuracy and (ii) the date on which
written notice specifying such inaccuracy and stating that such notice
is a "Notice of Default" hereunder has been given by registered or
certified mail, return receipt requested, to California Petroleum by
the Indenture Trustee, or to California Petroleum and the Indenture
Trustee by the holders of at least 25% in aggregate principal amount
of the Serial Mortgage Notes at the time Outstanding;
(e) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of California Petroleum 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, sequestrator (or similar
official) of California Petroleum or for any substantial part of its
property or ordering the winding up or liquidation of its affairs,
and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days;
(f) California Petroleum 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 or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of California
Petroleum or for any substantial part of its property, or make any
general assignment for the benefit of creditors;
(g) any of the Initial Charters is repudiated or
ceases to be in full force and effect, other than pursuant to the
terms thereof;
(h) any of the Related Security Documents is repudiated or
ceases to be in full force and effect or any of such Security
Documents ceases to give the Collateral Trustee, in any material
respect, the Liens, rights, powers and privileges purported to be
created thereby, in each case other than pursuant to the terms
thereof; or
(i) any of the Chevron Guarantees is repudiated or ceases to be
in full force and effect, other than pursuant to the terms thereof.
If an Indenture Event of Default (other than an Indenture Event
of Default specified in clause (e) or (f) above occurs and is continuing, then
and in each and every such case, unless the principal of all of the Serial
Mortgage Notes shall have already become due and payable, either the Indenture
Trustee or the holders of not less than 25% in aggregate principal amount of
the Serial Mortgage Notes then Outstanding hereunder, by notice in writing to
California Petroleum (and to the Indenture Trustee if given by the Serial
Noteholders), may declare the entire principal of all the Serial Mortgage
Notes and the interest accrued thereon, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable.
If an Indenture Event of Default specified in clause (e) or (f) above occurs
and is continuing, then and in each and every such case, unless the principal
of all of the Serial Mortgage Notes shall have already become due and payable,
the entire principal of all the Serial Mortgage Notes and the interest accrued
thereon, shall immediately and without further act become due and payable,
without presentment, demand, protest or notice by the Indenture Trustee or any
holder of Serial Mortgage Notes, all of which are hereby waived.
This provision, however, is subject to the condition that if,
at any time after the principal of the Serial Mortgage Notes 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,
California Petroleum shall pay or shall deposit with the Indenture Trustee a
sum sufficient to pay all matured installments of interest upon all the Serial
Mortgage Notes and the principal of any and all Serial Mortgage Notes 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 for each
Serial Mortgage Note as the rate of interest specified in such Serial Mortgage
Note, to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, their respective agents, attorneys and counsel,
and all other expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee except as a result of
negligence or bad faith, and if any and all Events of Default under this
Serial Indenture, other than the non-payment of the principal of Serial
Mortgage Notes which shall have become due by acceleration, shall have been
cured, waived or otherwise remedied as provided herein -- then and in every
such case the holders of a majority in aggregate principal amount of the Serial
Mortgage Notes then Outstanding, by written notice to California Petroleum and
to the Indenture Trustee, may waive all defaults 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.
SECTION 4.2 Collection of Indebtedness by Indenture Trustee;
Indenture Trustee May Prove Debt. California Petroleum covenants that if an
Indenture Event of Default specified in clause (b) of Section 4.1 occurs and is
continuing, then upon demand of the Indenture Trustee, California Petroleum
will pay to the Indenture Trustee for the benefit of the holders of the Serial
Mortgage Notes the whole amount that then shall have become due and payable on
all such Serial Mortgage Notes 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 for each Serial Mortgage
Note as the rate of interest specified in such Serial Mortgage Note); and in
addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, their respective
agents, attorneys and counsel, and any expenses and liabilities incurred, and
all advances made, by the Indenture Trustee and each predecessor Indenture
Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Indenture Trustee, California
Petroleum may pay the principal of and interest on the Serial Mortgage Notes
to the registered holders, whether or not the Serial Mortgage Notes be overdue.
In case California Petroleum shall fail forthwith to pay such
amounts upon such demand, the Indenture 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
California Petroleum or other obligor upon the Serial Mortgage Notes and
collect in the manner provided by law out of the property of California
Petroleum or other obligor upon the Serial Mortgage Notes, wherever situated,
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to
California Petroleum or any other obligor upon the Serial Mortgage Notes 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
California Petroleum or its property or such other obligor, or in case of any
other comparable judicial proceedings relative to California Petroleum or
other obligor upon the Serial Mortgage Notes, or to the creditors or property
of California Petroleum or such other obligor, the Indenture Trustee,
irrespective of whether the principal of the Serial Mortgage Notes shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Indenture 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 owing and unpaid in respect of the Serial
Mortgage Notes, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Indenture
Trustee (including any claim for reasonable compensation to the
Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee, except as a
result of negligence or bad faith) and of the Serial Noteholders
allowed in any judicial proceedings relative to California Petroleum
or other obligor upon the Serial Mortgage Notes, or to the creditors
or property of California Petroleum or such other obligor,
(b) unless prohibited by applicable law and regulations, to
vote on behalf of the holders of the Serial Mortgage Notes 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 Serial Noteholders
and of the Indenture Trustee on their behalf; and any trustee,
receiver, or liquidator, custodian or other similar official is
hereby authorized by each of the Serial Noteholders to make payments
to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to the
Serial Noteholders, to pay to the Indenture Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Indenture
Trustee, each predecessor Indenture Trustee and their respective
agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad
faith.
Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Serial Noteholder any plan or reorganization, arrangement,
adjustment or composition affecting the Serial Mortgage Notes or the rights of
any Holder thereof, or to authorize the Indenture Trustee to vote in respect
of the claim of any Serial Noteholder 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 Serial
Indenture, or under any of the Serial Mortgage Notes, may be enforced by the
Indenture Trustee without the possession of any of the Serial Mortgage Notes
or the production thereof on any trial or other proceedings relative thereto,
and any such action or proceedings instituted by the Indenture 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, disbursements and
compensation of the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents and attorneys, shall be for the ratable benefit of the
holders of the Serial Mortgage Notes.
In any proceedings brought by the Indenture Trustee (and also
any proceedings involving the interpretation of any provision of this Serial
Indenture to which the Indenture Trustee shall be a party) the Indenture
Trustee shall be held to represent all the holders of the Serial Mortgage
Notes, and it shall not be necessary to make any holders of the Serial
Mortgage Notes parties to any such proceedings.
SECTION 4.3 Application of Proceeds. Any moneys collected by
the Indenture Trustee pursuant to this Article shall be applied in the
following order at the date or dates fixed by the Indenture Trustee and, in
case of the distribution of such moneys on account of principal or interest,
upon presentation of the several Serial Mortgage Notes and stamping (or
otherwise noting) thereon the payment, or issuing Serial Mortgage Notes in
reduced principal amounts in exchange for the presented Serial Mortgage Notes
if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses, including
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee and their respective agents and attorneys and of all
expenses and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee except as a
result of negligence or bad faith;
SECOND: In case the principal of the Serial Mortgage Notes
shall not have become and be then due and payable, to the payment of
interest 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 Indenture Trustee) upon the overdue
installments of interest at the same rate for each Serial Mortgage
Note as the rate of interest specified in such Serial Mortgage Note,
such payments to be made ratably to the persons entitled thereto,
without discrimination or preference;
THIRD: In case the principal of the Serial Mortgage Notes
shall have become and shall be then due and payable, to the payment
of the whole amount then owing and unpaid upon all the Serial
Mortgage Notes for principal and interest, with interest upon the
overdue principal, and (to the extent that such interest has been
collected by the Indenture Trustee) upon overdue installments of
interest at the same rate for each Serial Mortgage Note as the rate
of interest specified in such Serial Mortgage Note; and in case such
moneys shall be insufficient to pay in full the whole amount so due
and unpaid upon the Serial Mortgage Notes, then to the payment of
such principal and interest, without preference or priority of
principal over interest, or of interest over principal, or of any
installment of interest over any other installment of interest, or of
any Serial Mortgage Note over any other Serial Mortgage Note, ratably
to the aggregate of such principal and accrued and unpaid interest;
and
FOURTH: To the payment of the remainder, if any, to California
Petroleum or any other person lawfully entitled thereto.
SECTION 4.4 Suits for Enforcement. In case an Indenture Event
of Default has occurred, has not been waived and is continuing, the Indenture
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Serial Indenture by such appropriate judicial proceedings as the
Indenture 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 Serial
Indenture or in aid of the exercise of any power granted in this Serial
Indenture or to enforce any other legal or equitable right vested in the
Indenture Trustee by this Serial Indenture or by law.
SECTION 4.5 Restoration of Rights on Abandonment of
Proceedings. In case the Indenture Trustee shall have proceeded to enforce
any right under this Serial Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to the Indenture Trustee, then and in every such case California
Petroleum and the Indenture Trustee shall be restored respectively to their
former positions and rights hereunder, and all rights, remedies and powers of
California Petroleum, the Indenture Trustee and the Serial Noteholders shall
continue as though no such proceedings had been taken.
SECTION 4.6 Limitations on Suits by Serial Noteholders. No
holder of any Serial Mortgage Note shall have any right by virtue or by
availing of any provision of this Serial 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 Serial 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
Indenture 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 Serial Mortgage Notes then Outstanding shall
have made written request upon the Indenture Trustee to institute such action
or proceedings in its own name as trustee hereunder and shall have offered to
the Indenture Trustee such reasonable indemnity as it may require against the
costs, expenses and liabilities to be incurred therein or thereby and the
Indenture Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action or
proceedings and no direction inconsistent with such written request shall have
been given to the Indenture Trustee pursuant to Section 4.8; it being
understood and intended, and being expressly covenanted by the taker and
holder of every Serial Mortgage Note with every other taker and holder and the
Indenture Trustee, that no one or more holders of Serial Mortgage Notes shall
have any right in any manner whatever by virtue or by availing of any
provision of this Serial Indenture to affect, disturb or prejudice the rights
of any other holder of Serial Mortgage Notes, or to obtain or seek to obtain
priority over or preference to any other such holder or to enforce any right
under this Serial Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Serial Mortgage Notes.
For the protection and enforcement of the provisions of this Section, each and
every Serial Noteholder and the Indenture Trustee shall be entitled to such
relief as can be given either at law or in equity.
SECTION 4.7 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 2.6, no right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Serial
Noteholders 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 Indenture Trustee or of any holder
of any of the Serial Mortgage Notes to exercise any right or power accruing
upon any Indenture 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 Indenture Event of Default or an acquiescence therein; and, subject to
Section 4.6, every power and remedy given by this Serial Indenture or by law to
the Indenture Trustee or to the Serial Noteholders may be exercised from time
to time, and as often as shall be deemed expedient, by the Indenture Trustee
or by the Serial Noteholders.
SECTION 4.8 Control by Serial Noteholders. The holders of a
majority in aggregate principal amount of the Serial Mortgage Notes 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 Indenture Trustee,
or exercising any trust or power conferred on the Indenture Trustee by this
Serial Indenture; provided that such direction shall not be otherwise than in
accordance with law and the provisions of this Serial Indenture and provided
further that (subject to the provisions of Section 5.1) the Indenture Trustee
shall have the right to decline to follow any such direction if the Indenture
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Indenture Trustee
in good faith by its board of directors, the executive committee, or a trust
committee of directors or responsible officers of the Indenture Trustee shall
determine that the action or proceedings so directed would involve the
Indenture Trustee in personal liability or if the Indenture Trustee in good
faith shall so determine that the actions or forebearances specified in or
pursuant to such direction shall be unduly prejudicial to the interests of
holders of the Serial Mortgage Notes not joining in the giving of said
direction, it being understood that (subject to Section 5.1) the Indenture
Trustee shall have no duty to ascertain whether or not such actions or
forebearances are unduly prejudicial to such holders.
Nothing in this Serial Indenture shall impair the right of the
Indenture Trustee in its discretion to take any action deemed proper by the
Indenture Trustee and which is not inconsistent with such direction by Serial
Noteholders.
SECTION 4.9 Waiver of Past Defaults. Prior to the declaration
of the maturity of the Serial Mortgage Notes as provided in Section 4.1, the
holders of a majority in aggregate principal amount of the Serial Mortgage
Notes at the time Outstanding may on behalf of the holders of all the Serial
Mortgage Notes waive any past default or Indenture Event of Default hereunder
and its consequences, except a default (a) in the payment of principal of or
interest on any of the Serial Mortgage Notes or (b) in respect of a covenant
or provision hereof which cannot be modified or amended without the consent of
the holder of each Serial Mortgage Note affected. In the case of any such
waiver, California Petroleum, the Indenture Trustee and the holders of the
Serial Mortgage Notes shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Upon any such waiver, such default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Indenture Event of
Default arising therefrom shall be deemed to have been cured, and not to have
occurred for every purpose of this Serial Indenture; but no such waiver shall
extend to any subsequent or other default or Indenture Event of Default or
impair any right consequent thereon.
SECTION 4.10 Enforcement Notice. (a) If any Indenture Event
of Default occurs and is continuing and if such Indenture Event of Default is
actually known by a Responsible Officer of the Indenture Trustee charged with
administration of this Serial Indenture, the Indenture Trustee shall mail to
the Collateral Trustee and each holder of a Serial Mortgage Note, in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act,
notice of each Indenture Event of Default within 90 days after it occurs (an
"Enforcement Notice"), unless such Indenture Event of Default has been cured;
provided that, except in the case of a default in the payment of the principal
of or interest on any Serial Mortgage Note, the Indenture 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 Responsible
Officers of the Indenture Trustee in good faith determine that the withholding
of such notice is in the interest of the holders of the Serial Mortgage Notes.
(b) So long as an Enforcement Notice is in effect, the
Collateral Trustee shall exercise the rights and remedies respectively
provided in the Collateral Agreement and the Related Security Documents
subject to the direction of the Applicable Secured Parties (as defined in the
Collateral Agreement) as provided herein and therein. The Collateral Trustee
is not empowered to exercise any remedy under the Collateral Agreement or any
of the Related Security Document unless an Enforcement Notice is in effect.
(c) Except as otherwise provided by Section 4.10(e), an
Enforcement Notice shall become effective upon receipt thereof by the
Collateral Trustee. An Enforcement Notice, once effective, shall remain in
effect unless and until it is canceled as provided in Section 4.10(d) or
deemed canceled as provided in Section 4.10(e).
(d) If the Indenture Trustee has given an Enforcement Notice,
the Indenture Trustee shall be required to cancel such Enforcement Notice
under the circumstances set forth in Section 4.1.
(e) Notwithstanding anything to the contrary contained in this
Section 4.10, if the Collateral Trustee and the Indenture Trustee are the same
Person, the Indenture Trustee shall not be required to deliver a notice to the
Collateral Trustee in order for an Enforcement Notice to become effective or
to be canceled. In any such case, an Enforcement Notice shall, for all
purposes of the Collateral Agreement the Related Security Documents, (i) be
deemed to have been delivered and to have become effective immediately upon
the Indenture Trustee being charged under this Section 4.10 with knowledge
that (x) a Serial Mortgage Note has not been paid in full at the stated final
maturity thereof or (y) an Indenture Event of Default has occurred under the
terms of this Serial Indenture, and (ii) shall be deemed to have been canceled
at such time as the Indenture Trustee would have been required to deliver a
notice of cancellation under Section 4.1 pursuant to this Section 4.10 were it
not also the Collateral Trustee.
(f) The Collateral Trustee shall notify California Petroleum,
Chevron and the Indenture Trustee of the effectiveness or the cancellation of
any Enforcement Notice within three Business Days thereof; provided that the
Collateral Trustee shall not be required to so notify the Indenture Trustee if
the Indenture Trustee and the Collateral Trustee are the same Person.
The Indenture Trustee shall not be deemed to have knowledge of
any Default or Indenture Event of Default except (i) any Indenture Event of
Default occurring pursuant to Section 4.1(b) or (ii) any Default or Indenture
Event of Default of which a Responsible Officer of the Indenture Trustee
charged with administration of this Serial Indenture shall have received
written notification or obtained actual knowledge.
ARTICLE FIVE
CONCERNING THE INDENTURE TRUSTEE.
SECTION 5.1 Duties and Responsibilities of the Indenture
Trustee; During Default; Prior to Default. The Indenture Trustee, prior to
the occurrence of an Indenture Event of Default and after the curing or
waiving of all Indenture Events of Default which may have occurred, undertakes
to perform such duties and only such duties as are specifically set forth in
this Serial Indenture. In case an Indenture Event of Default has occurred
(which has not been cured or waived) the Indenture Trustee shall exercise such
of the rights and powers vested in it by this Serial 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 Serial Indenture shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Indenture Event of Default
and after the curing or waiving of all such Indenture Events of
Default which may have occurred:
(i) the duties and obligations of the Indenture Trustee
shall be determined solely by the express provisions of this
Serial Indenture, and the Indenture Trustee shall not be liable
except for the performance of such duties and obligations as
are specifically set forth in this Serial Indenture, and no
implied covenants or obligations shall be read into this Serial
Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith on the part of the
Indenture Trustee, the Indenture 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 Indenture Trustee and conforming
to the requirements of this Serial 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 Indenture Trustee, the Indenture Trustee shall be under a
duty to examine the same to determine whether or not they
conform to the requirements of this Serial Indenture;
(b) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a responsible officer or responsible
officers of the Indenture Trustee, unless it shall be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts;
and
(c) the Indenture 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 of not less than a
majority in principal amount of the Serial Mortgage Notes at the time
Outstanding relating to the time, method and place of conducting any
proceeding for any remedy available to the Indenture Trustee, or
exercising any trust or power conferred upon the Indenture Trustee,
under this Serial Indenture.
None of the provisions contained in this Serial Indenture shall
require the Indenture 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.
This Section 5.1 is in furtherance of and subject to Sections
315 and 316 of the Trust Indenture Act.
SECTION 5.2 Certain Rights of the Indenture Trustee. In
furtherance of and subject to the Trust Indenture Act, and subject to Section
5.1:
(a) the Indenture 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 California
Petroleum mentioned herein shall be sufficiently evidenced by an
Officers' Certificate (unless other evidence in respect thereof be
herein specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Indenture Trustee by a copy thereof
certified by the secretary or an assistant secretary of California
Petroleum;
(c) the Indenture 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 Indenture Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Serial
Indenture at the request, order or direction of any of the Serial
Noteholders pursuant to the provisions of this Serial Indenture,
unless such Serial Noteholders shall have offered to the Indenture
Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred therein or thereby;
(e) the Indenture 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 Serial Indenture;
(f) prior to the occurrence of an Indenture Event of Default
hereunder and after the curing or waiving of all Indenture Events of
Default, the Indenture 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 Serial Mortgage Notes then Outstanding;
provided that, if the payment within a reasonable time to the
Indenture 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 Indenture Trustee, not reasonably assured to the Indenture
Trustee by the security afforded to it by the terms of this Serial
Indenture, the Indenture Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by
California Petroleum or, if paid by the Indenture Trustee or any
predecessor trustee, shall be repaid by California Petroleum upon
demand; and
(g) the Indenture 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
Indenture Trustee shall not be responsible for any misconduct or
negligence on the part of any such agent or attorney appointed with
due care by it hereunder.
SECTION 5.3 Indenture Trustee Not Responsible for Recitals,
Disposition of Serial Mortgage Notes or Application of Proceeds Thereof. The
recitals contained herein and in the Serial Mortgage Notes, except the
Indenture Trustee's certificates of authentication, shall be taken as the
statements of California Petroleum, and the Indenture Trustee assumes no
responsibility for the correctness of the same. The Indenture Trustee makes
no representation as to the validity or sufficiency of this Serial Indenture
or of the Serial Mortgage Notes. The Indenture Trustee shall not be
accountable for the use or application by California Petroleum of any of the
Serial Mortgage Notes or of the proceeds thereof.
SECTION 5.4 Indenture Trustee and Agents May Hold Serial
Mortgage Notes; Collections, etc. The Indenture Trustee or any agent of
California Petroleum or the Indenture Trustee, in its individual or any other
capacity, may become the owner or pledgee of Serial Mortgage Notes with the
same rights it would have if it were not the Indenture Trustee or such agent
and may otherwise deal with California Petroleum and receive, collect, hold
and retain collections from California Petroleum with the same rights it would
have if it were not the Indenture Trustee or such agent.
SECTION 5.5 Moneys Held by Indenture Trustee. Subject to the
provisions of Section 9.4 hereof, all moneys received by the Indenture 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 Indenture Trustee nor any agent of California Petroleum or the Indenture
Trustee shall be under any liability for interest on any moneys received by it
hereunder.
SECTION 5.6 Compensation and Expenses. (a) California
Petroleum shall on demand pay or reimburse the Indenture Trustee for (i)
reasonable compensation to the Indenture Trustee, to the extent permitted by
law (which shall not be limited by any provision of law in regard to
compensation of fiduciaries or of a trustee of an express trust), for its
services hereunder and (ii) all of the reasonable costs and expenses of the
Indenture Trustee (including, without limitation, the reasonable compensation
and expenses and disbursements of its counsel and of all agents and other
persons not regularly in its employ) (A) in connection with the preparation,
execution and delivery of this Serial Indenture, the Collateral Agreement or
the other Security Documents, any waiver or consent thereunder, any
modification or termination thereof, or any Default or alleged Default; (B) if
an Indenture Event of Default occurs, in connection with such Indenture Event
of Default and collection, bankruptcy, insolvency and other enforcement
proceedings relating thereto; (C) in connection with the administration or
protection of the Trust Estate, the sale or other disposition of any
Collateral or the preservation, protection or defense of the Indenture
Trustee's or the Collateral Trustee's rights under the Security Documents or
in and to the Trust Estate, whether pursuant to the Collateral Agreement or
pursuant hereto; or (D) in connection with any removal of the Indenture Trustee
pursuant to subsection 5.9(a) hereof or of the Collateral Trustee pursuant to
subsection 6.07(a) of the Collateral Agreement.
(b) California Petroleum shall indemnify and hold harmless the
Indenture Trustee from and against any and all liabilities, obligations,
losses, damages, penalties, judgments, actions, suits, proceedings, reasonable
costs and expenses (including reasonable fees and disbursements of counsel) of
any kind whatsoever which may be incurred by the Indenture Trustee in
connection with any investigative, administrative or judicial proceeding
(whether or not such indemnified party is designated a party to such
proceeding) relating to this Serial Indenture, the Serial Mortgage Notes, the
Trust Estate, the Collateral or the Security Documents, provided that the
Indenture Trustee shall not have the right to be indemnified hereunder for its
own negligence or bad faith as determined by a court of competent
jurisdiction. In any suit, proceeding or action brought by the Indenture
Trustee under or with respect to any contract, agreement, interest or
obligation constituting part of the Collateral for any sum owing thereunder or
hereunder, or to enforce any provisions thereof, California Petroleum agrees
to save, indemnify and keep the Indenture Trustee harmless from and against
all expense, loss or damage suffered by reason of any defense, setoff,
counterclaim, recoupment or reduction of liability whatsoever of California
Petroleum thereunder, arising out of a breach by California Petroleum of any
obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to, from or in favor of California Petroleum or
its successors, and all such obligations of California Petroleum shall be and
remain enforceable against and only against California Petroleum and shall not
be enforceable against the Indenture Trustee.
(c) In addition to, but without duplication of, its
obligations under subsection (b) above, California Petroleum shall indemnify
and hold harmless the Indenture Trustee from and against any and all losses,
damages and expenses incurred by the Indenture Trustee as a result of any oil
or other environmental damage resulting from the operation of any Vessel,
including, without limitation, any liability under the Oil Pollution Act of
1990, as amended, or the laws of any other jurisdiction relating to oil spills.
(d) The agreements in this Section 5.6 shall survive the
termination of the other provisions of this Serial Indenture Agreement but
shall not be secured by any Lien on the Collateral.
SECTION 5.7 Right of Indenture Trustee to Rely on Officers'
Certificate, etc. Subject to Sections 5.1 and 5.2, whenever in the
administration of the trusts of this Serial Indenture the Indenture 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 Indenture
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Indenture Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Indenture Trustee, shall
be full warrant to the Indenture Trustee for any action taken, suffered or
omitted by it under the provisions of this Serial Indenture upon the faith
thereof.
SECTION 5.8 Persons Eligible for Appointment as Indenture
Trustee. The Indenture Trustee hereunder shall at all times be a bank or
trust company in good standing, having power to act as Indenture Trustee
hereunder and which is eligible to do so within the provisions of Section
310(a) of the Trust Indenture Act, incorporated under the laws of the United
States of America or any State thereof or the District of Columbia and having
its principal corporate trust office within the 48 contiguous States and shall
also have capital, surplus and undivided profits of not less than $10,000,000,
if there be such an institution with such capital, surplus and undivided
profits willing, qualified and able to accept the trust hereunder upon
reasonable or customary terms.
SECTION 5.9 Resignation and Removal; Appointment of Successor
Indenture Trustee. (a) The Indenture Trustee may at any time resign by
giving written notice of resignation to California Petroleum, Chevron, the
Collateral Trustee and the Term Indenture Trustee and by mailing notice
thereof by first-class mail to holders of Serial Mortgage Notes at their last
addresses as they shall appear on the Serial Mortgage Note register. Upon
receiving such notice of resignation (i) California Petroleum, with the
consent of Chevron, if no Enforcement Notice is then in effect, or (ii) the
holders of a majority in aggregate principal amount of Serial Mortgage Notes,
if an Enforcement Notice is then in effect, shall promptly appoint a successor
trustee by an instrument in writing delivered to the resigning Indenture
Trustee, the successor trustee, Chevron, California Petroleum and Term
Indenture Trustee. If no successor trustee shall have been so appointed 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 Chevron,
California Petroleum, the Collateral Trustee or any Serial Noteholder who has
been a bona fide holder of a Serial Mortgage Note or Serial Mortgage Notes for
at least six months may, 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 Indenture Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act after written
request therefor by California Petroleum or by any Serial Noteholder
who has been a bona fide holder of a Serial Mortgage Note or Serial
Mortgage Notes for at least six months; or
(ii) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 5.8 and shall fail to
resign after written request therefor by California Petroleum or by
any such Serial Noteholder; or
(iii) the Indenture Trustee shall become incapable of acting,
or shall be adjudged a bankrupt or insolvent, or a receiver or
liquidator of the Indenture Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Indenture Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case (x) California Petroleum, with the consent of Chevron,
if no Enforcement Notice is then in effect, or (y) the holders of a majority
in aggregate principal amount of Serial Mortgage Notes, if an Enforcement
Notice is then in effect, may remove the Indenture Trustee and appoint a
successor trustee by an instrument in writing delivered to the Indenture
Trustee so removed, the successor trustee, Chevron, the Collateral Trustee and
the Term Indenture Trustee, or, subject to Section 315(e) of the Trust Serial
Indenture Act, Chevron, the Collateral Trustee or any Serial Noteholder who
has been a bona fide holder of a Serial Mortgage Note or Serial Mortgage Notes
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
Indenture Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Indenture Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Serial Mortgage Notes at the time Outstanding may at any time remove the
Indenture Trustee and appoint a successor trustee by delivering to the
Indenture Trustee so removed, to the successor trustee so appointed, to
California Petroleum, Chevron, the Collateral Trustee and the Term Indenture
Trustee, the evidence provided for in Section 6.1 of the action in that regard
taken by the Serial Noteholders.
(d) Any resignation or removal of the Indenture Trustee and
any appointment of a successor trustee pursuant to any of the provisions of
this Section 5.9 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 5.10.
SECTION 5.10 Acceptance of Appointment by Successor Indenture
Trustee. Any successor indenture trustee appointed as provided in Section 5.9
shall execute and deliver to California Petroleum, Chevron, the Collateral
Trustee, to its predecessor indenture trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor indenture trustee shall become effective and such successor
indenture trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as trustee herein; but,
nevertheless, on the written request of California Petroleum, Chevron, or of
the successor indenture trustee, upon payment of its charges then unpaid, the
indenture trustee ceasing to act shall, subject to Section 9.4, pay over to
the successor trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor trustee all
such rights, powers, duties and obligations. Upon request of any such
successor trustee, California Petroleum and Chevron 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 indenture trustee
ceasing to act shall, nevertheless, retain a prior claim upon all property or
funds held or collected by such indenture trustee to secure any amounts then
due it pursuant to the provisions of Section 5.6.
Upon acceptance of appointment by a successor indenture trustee
as provided in this Section 5.10, California Petroleum shall mail notice
thereof by first-class mail to the holders of Serial Mortgage Notes at their
last addresses as they shall appear in the Serial Mortgage Note register. If
the acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 5.9. If California Petroleum
fails to mail such notice within 10 days after acceptance of appointment by
the successor indenture trustee, the successor indenture trustee shall cause
such notice to be mailed at the expense of California Petroleum.
SECTION 5.11 Merger, Conversion, Consolidation or Succession
to Business of Indenture Trustee. Any corporation into which the Indenture
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 Indenture Trustee shall be a party, or any corporation succeeding to
the corporate trust business of the Indenture Trustee, shall be the successor
of the Indenture Trustee hereunder, provided that such corporation shall be
eligible under the provisions of Section 5.8, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Indenture Trustee
shall succeed to the trusts created by this Serial Indenture any of the Serial
Mortgage Notes shall have been authenticated but not delivered, any such
successor to the Indenture Trustee may adopt the certificate of authentication
of any predecessor Indenture Trustee and deliver such Serial Mortgage Notes so
authenticated; and, in case at that time any of the Serial Mortgage Notes
shall not have been authenticated, any successor to the Indenture Trustee may
authenticate such Serial Mortgage Notes either in the name of any predecessor
hereunder or in the name of the successor Indenture Trustee; and in all such
cases such certificate shall have the full force which it is anywhere in the
Serial Mortgage Notes or in this Serial Indenture provided that the
certificate of the Indenture Trustee shall have; provided, that the right to
adopt the certificate of authentication of any predecessor Indenture Trustee
or to authenticate Serial Mortgage Notes in the name of any predecessor
Indenture Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
ARTICLE SIX
CONCERNING THE SERIAL NOTEHOLDERS.
SECTION 6.1 Evidence of Action Taken by Serial Noteholders.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Serial Indenture to be given or taken by Serial
Noteholders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Serial Noteholders 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 Indenture Trustee. Proof of execution of any
instrument or of a writing appointing any such agent shall be sufficient for
any purpose of this Serial Indenture and (subject to Sections 5.1 and 5.2)
conclusive in favor of the Indenture Trustee and California Petroleum, if made
in the manner provided in this Article.
SECTION 6.2 Proof of Execution of Instruments and of Holding
of Serial Mortgage Notes; Record Date. Subject to Sections 5.1 and 5.2, the
execution of any instrument by a Serial Noteholder or his agent or proxy may
be proved in accordance with such reasonable rules and regulations as may be
prescribed by the Indenture Trustee or in such manner as shall be satisfactory
to the Indenture Trustee. The holding of Serial Mortgage Notes shall be
proved by the Serial Mortgage Note register or by a certificate of the
registrar thereof. California Petroleum may set a record date for purposes of
determining the identity of holders of Serial Mortgage Notes entitled to vote
or consent to any action referred to in Section 6.1, which record date may be
set at any time or from time to time by notice to the Indenture Trustee, for
any date or dates (in the case of any adjournment or resolicitation) 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 Serial Mortgage Notes of record on such record date shall be
entitled to so vote or give such consent or to withdraw such vote or consent.
SECTION 6.3 Holders to Be Treated as Owners. California
Petroleum, Chevron, the Indenture Trustee and any agent of California
Petroleum, Chevron or the Indenture Trustee may deem and treat the person in
whose name any Serial Mortgage Note shall be registered upon the Serial
Mortgage Note register as the absolute owner of such Serial Mortgage Note
(whether or not such Serial Mortgage Note 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 Serial Indenture, interest on such Serial Mortgage Note and
for all other purposes; and neither California Petroleum nor Chevron nor the
Indenture Trustee nor any agent of California Petroleum, Chevron or the
Indenture Trustee shall be affected by any notice to the contrary. All such
payments so made to any such person, or upon his order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge
the liability for moneys payable upon any such Serial Mortgage Note.
SECTION 6.4 Serial Mortgage Notes Deemed Not Outstanding. In
determining whether the holders of the requisite aggregate principal amount of
Serial Mortgage Notes have concurred in any direction, consent or waiver under
this Serial Indenture, Serial Mortgage Notes which are owned by California
Petroleum or any Affiliate thereof, or Chevron, or any Affiliate thereof,
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
Indenture Trustee shall be protected in relying on any such direction, consent
or waiver only Serial Mortgage Notes which the Indenture Trustee knows are so
owned shall be so disregarded. 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 Indenture Trustee in accordance with such advice. Upon request of the
Indenture Trustee, California Petroleum or Chevron shall furnish to the
Indenture Trustee promptly an Officers' Certificate listing and identifying
all Serial Mortgage Notes, if any, known by California Petroleum or Chevron,
as the case might be, to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 5.1 and 5.2, the Indenture
Trustee shall be entitled to accept such Officers' Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Serial
Mortgage Notes not listed therein are Outstanding for the purpose of any such
determination.
SECTION 6.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Indenture Trustee, as provided
in Section 6.1, of the taking of any action by the holders of the percentage
in aggregate principal amount of the Serial Mortgage Notes specified in this
Serial Indenture in connection with such action, any holder of a Serial
Mortgage Note the serial number of which is shown by the evidence to be
included among the serial numbers of the Serial Mortgage Notes 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 Serial Mortgage Note. Except as
aforesaid any such action taken by the holder of any Serial Mortgage Note
shall be conclusive and binding upon such holder and upon all future holders
and owners of such Serial Mortgage Note and of any Serial Mortgage Notes
issued in exchange or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon any such Serial Mortgage Note. Any
action taken by the holders of the percentage in aggregate principal amount of
the Serial Mortgage Notes specified in this Serial Indenture in connection
with such action shall be conclusively binding upon California Petroleum, the
Indenture Trustee and the holders of all the Serial Mortgage Notes.
ARTICLE SEVEN
SUPPLEMENTAL INDENTURES.
SECTION 7.1 Supplemental Indentures Without Consent of Serial
Noteholders. California Petroleum, when authorized by a resolution of its
Board of Directors, Chevron and the Indenture 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
Collateral Trustee as security for the Serial Mortgage Notes any
property or assets;
(b) to evidence the succession of another corporation to
Chevron, or successive successions, and the assumption by the
successor corporation of the covenants, agreements and obligations of
Chevron pursuant to Article Eight;
(c) 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 Serial Indenture or
under any supplemental indenture as they may deem necessary or
desirable and which shall not adversely affect the interests of the
holders of the Serial Mortgage Notes; and
(d) to comply with the requirements of the Commission in order
to maintain the qualification of this Serial Indenture under the
Trust Indenture Act.
The Indenture Trustee is hereby authorized to join 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 Indenture Trustee shall not be obligated to enter into any
such supplemental indenture which affects the Indenture Trustee's own rights,
duties or immunities under this Serial 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
Serial Mortgage Notes at the time Outstanding, notwithstanding any of the
provisions of Section 7.2.
SECTION 7.2 Supplemental Indentures With Consent of Serial
Noteholders. With the consent (evidenced as provided in Article Six) of the
holders of a majority in aggregate principal amount of the Serial Mortgage
Notes at the time Outstanding, California Petroleum, when authorized by a
resolution of its Board of Directors, Chevron and the Indenture 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 Serial Indenture or of
any supplemental indenture or of modifying in any manner the rights of the
holders of the Serial Mortgage Notes; provided that no such supplemental
indenture shall (a) extend the final maturity of any Serial Mortgage Note, 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 impair or affect the right of any Serial Noteholder to institute suit for
the payment thereof without the consent of the holder of each Serial Mortgage
Note so affected, or (b) reduce the aforesaid percentage of Serial Mortgage
Notes, the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all Serial
Mortgage Notes then Outstanding; and provided further that no such
supplemental indenture shall (i) change in any manner or eliminate Sections
3.5, 3.8 or 3.9 or any of the Indenture Events of Default set forth in Section
4.1 or (ii) effect any of the modifications described in clause (a) or (b)
above, without the consent pursuant to Section 7.03(d) of the Collateral
Agreement of the Collateral Trustee and the holders of a majority in aggregate
principal amount of Term Mortgage Notes outstanding under the Term Indenture.
Upon the request of California Petroleum, accompanied by a copy
of a resolution of the Board of Directors certified by the Secretary or an
Assistant Secretary of California Petroleum authorizing the execution of any
such supplemental indenture, and Chevron and upon the filing with the
Indenture Trustee of evidence of the consent of Serial Noteholders and other
documents, if any, required by Section 6.1 the Indenture Trustee shall join
with California Petroleum and Chevron in the execution of such supplemental
indenture unless such supplemental indenture affects the Indenture Trustee's
own rights, duties or immunities under this Serial Indenture or otherwise, in
which case the Indenture 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 Serial
Noteholders 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 California Petroleum, Chevron
and the Indenture Trustee of any supplemental indenture pursuant to the
provisions of this Section, California Petroleum shall mail a notice thereof by
first-class mail to the holders of Serial Mortgage Notes at their addresses as
they shall appear on the registry books of California Petroleum, setting forth
in general terms the substance of such supplemental indenture. Any failure of
California Petroleum to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 7.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof,
this Serial 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 Serial Indenture of the
Indenture Trustee, Chevron, California Petroleum and the holders of Serial
Mortgage Notes 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 Serial Indenture for
any and all purposes.
SECTION 7.4 Documents to Be Given to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 5.1 and 5.2, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental indenture complies with the applicable
provisions of this Serial Indenture.
SECTION 7.5 Notation on Serial Mortgage Notes in Respect of
Supplemental Indentures. Serial Mortgage Notes 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 Indenture Trustee
as to any matter provided for by such supplemental indenture or as to any
action taken at any such meeting. If California Petroleum, Chevron or the
Indenture Trustee shall so determine, new Serial Mortgage Notes so modified as
to conform, in the opinion of the Indenture Trustee, Chevron and California
Petroleum, to any modification of this Serial Indenture contained in any such
supplemental indenture may be prepared by California Petroleum, authenticated
by the Indenture Trustee and delivered in exchange for the Serial Mortgage
Notes then Outstanding.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE OR CONVEYANCE.
SECTION 8.1 Covenant Not to Merge, Consolidate, Sell or Convey
Property Except Under Certain Conditions. Chevron covenants that so long as
any of the Serial Mortgage Notes are Outstanding, it will maintain its
corporate existence, will not dissolve, sell or otherwise dispose of all or
substantially all of its assets and will not consolidate with or merge into
another corporation or permit one or more other corporations to consolidate
with or merge into it; provided that Chevron may, without violating the
covenants contained in this Section 8.1, consolidate with or merge into
another corporation or permit one or more other corporations to consolidate
with or merge into it, or sell or otherwise transfer to another corporation
all or substantially all of its assets as an entirety and thereafter dissolve,
if the surviving, resulting or transferee corporation, as the case may be, (i)
shall be incorporated and existing under the laws of one of the States of the
United States of America, (ii) expressly assumes, if such corporation is not
Chevron, all of the obligations of Chevron hereunder and (iii) is not, after
such transaction, otherwise in default under any provisions hereof.
SECTION 8.2 Successor Corporation Substituted. In case of any
such consolidation, merger, sale or conveyance, and following such an
assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for Chevron, with the same effect as if it had
been named herein.
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 Serial Mortgage Notes 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) Chevron 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 Serial Indenture and
the Serial Mortgage Notes and may be liquidated and dissolved.
SECTION 8.3 Opinion of Counsel to Indenture Trustee. The
Indenture Trustee, subject to the provisions of Sections 5.1 and 5.2, may
receive an Opinion of Counsel 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 Serial Indenture.
ARTICLE NINE
SATISFACTION AND DISCHARGE OF
SERIAL INDENTURE; UNCLAIMED MONEYS.
SECTION 9.1 Satisfaction and Discharge of Serial Indenture.
If at any time (a) California Petroleum shall have paid or caused to be paid
the principal of and interest on all the Serial Mortgage Notes Outstanding
hereunder, as and when the same shall have become due and payable, or (b)
California Petroleum shall have delivered to the Indenture Trustee for
cancellation all Serial Mortgage Notes theretofore authenticated (other than
any Serial Mortgage Notes which shall have been destroyed, lost or stolen and
which shall have been replaced or paid as provided in Section 2.6) or (c) (i)
all such securities not theretofore delivered to the Indenture 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 under
arrangements satisfactory to the Indenture Trustee for the giving of notice of
redemption, and (ii) California Petroleum shall have irrevocably deposited or
caused to be deposited with the Indenture Trustee (or the Collateral Trustee
on behalf of the Indenture Trustee) as trust funds the entire amount in cash
or direct obligations of the United States of America, backed by its full
faith and credit, maturing as to principal and interest in such amounts and at
such times as will insure the availability of cash sufficient to pay at
maturity or upon redemption all such Serial Mortgage Notes not theretofore
delivered to the Indenture Trustee for cancellation, including principal and
interest due or to become due to such date of maturity as the case may be, and
if, in any such case, California Petroleum shall also pay or cause to be paid
all other sums payable hereunder by California Petroleum, then this Serial
Indenture shall cease to be of further effect (except as to (i) rights of
registration of transfer and exchange, (ii) substitution of apparently
mutilated, defaced, destroyed, lost or stolen Serial Mortgage Notes, (iii)
rights of holders to receive payments of principal thereof and interest
thereon, upon the original stated due dates therefor (but not upon
acceleration), (iv) the rights, obligations and immunities of the Indenture
Trustee hereunder and (v) the rights of the Serial Noteholders as
beneficiaries hereof with respect to the property so deposited with or on
behalf the Indenture Trustee payable to all or any of them), and the Indenture
Trustee, on demand of California Petroleum accompanied by an Officers'
Certificate and an Opinion of Counsel and at the cost and expense of
California Petroleum, shall execute proper instruments acknowledging such
satisfaction of and discharging this Serial Indenture. California Petroleum
agrees to reimburse the Indenture Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Indenture Trustee for
any services thereafter reasonably and properly rendered by the Indenture
Trustee in connection with this Serial Indenture or the Serial Mortgage Notes.
SECTION 9.2 Application by Indenture Trustee of Funds
Deposited for Payment of Serial Mortgage Notes. Subject to Section 9.4, all
moneys deposited with the Indenture Trustee pursuant to Section 9.1 shall be
held in trust and applied by it to the payment, either directly or through any
paying agent (including the Collateral Trustee), to the holders of the
particular Serial Mortgage Notes for the payment or redemption of which such
moneys have been deposited with the Indenture Trustee, of all sums due and to
become due thereon for principal and interest; but such money need not be
segregated from other funds except to the extent required by law.
SECTION 9.3 Repayment of Moneys Held by Paying Agent. In
connection with the satisfaction and discharge of this Serial Indenture all
moneys then held by any paying agent under the provisions of the Collateral
Agreement in accordance with this Serial Indenture shall be paid to the
Persons entitled thereto pursuant to the Related Security Documents and
thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 9.4 Return of Moneys Held by Indenture Trustee and
Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to
the Indenture Trustee or any paying agent for the payment of the principal of
or interest on any Serial Mortgage Note 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
California Petroleum and unless otherwise required by mandatory provisions of
applicable escheat or abandoned or unclaimed property law, be repaid to
California Petroleum by the Indenture Trustee or such paying agent, and the
holder of such Serial Mortgage Note shall, unless otherwise required by
mandatory provisions of applicable escheat or abandoned or unclaimed property
laws, thereafter look only to California Petroleum for any payment which such
holder may be entitled to collect, and all liability of the Indenture Trustee
or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE TEN
MISCELLANEOUS PROVISIONS.
SECTION 10.1 Incorporators, Stockholders, Officers and
Directors of California Petroleum Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement contained in this
Serial Indenture, or in any Serial Mortgage Note, 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 California Petroleum or of any successor, either directly or through
California Petroleum 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 Serial Mortgage Notes by the
holders thereof and as part of the consideration for the issue of the Serial
Mortgage Notes.
SECTION 10.2 Provisions of Serial Indenture for the Sole
Benefit of Parties and Serial Noteholders. Nothing in this Serial Indenture
or in the Serial Mortgage Notes, 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 Serial Mortgage Notes, any
legal or equitable right, remedy or claim under this Serial 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 Serial Mortgage Notes.
SECTION 10.3 Successors and Assigns of California Petroleum
Bound by Serial Indenture. All the covenants, stipulations, promises and
agreements in this Serial Indenture contained by or in behalf of California
Petroleum shall bind its successors and assigns, whether so expressed or not.
SECTION 10.4 Notices and Demands on California Petroleum,
Indenture Trustee and Serial Noteholders. Any notice or demand which by any
provision of this Serial Indenture is required or permitted to be given or
served by the Indenture Trustee or by the holders of Serial Mortgage Notes to
or on California Petroleum may be given or served by being deposited postage
prepaid, first-class mail (except as otherwise specifically provided herein)
addressed (until another address of California Petroleum is filed by
California Petroleum with the Indenture Trustee) to California Petroleum
Transport Corporation, c/o J H Management Corporation, Room 6/9, One
International Place, Boston, MA 02110-2624. Any notice, direction, request or
demand by California Petroleum or any Serial Noteholder to or upon the
Indenture Trustee shall be deemed to have been sufficiently given or made, for
all purposes, if given or made at the Corporate Trust Office at 50 California
Street, San Francisco, CA 94111.
Where this Serial 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 Serial
Mortgage Note 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 Serial 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 Indenture 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 California
Petroleum and Serial Noteholders when such notice is required to be given
pursuant to any provision of this Serial Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed
to be a sufficient giving of such notice.
SECTION 10.5 Officers' Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by
California Petroleum to the Indenture Trustee to take any action under any of
the provisions of this Serial Indenture, California Petroleum shall furnish to
the Indenture Trustee an Officers' Certificate stating that all conditions
precedent provided for in this Serial 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 Serial
Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Serial
Indenture and delivered to the Indenture Trustee with respect to compliance
with a condition or covenant provided for in this Serial Indenture 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
California Petroleum 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 California Petroleum, upon the
certificate, statement or opinion of or representations by an officer or
officers of California Petroleum, 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
California Petroleum 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 California Petroleum,
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 Indenture Trustee shall contain a statement that
such firm is independent.
SECTION 10.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Serial Mortgage
Notes, the date fixed for redemption of any Serial Mortgage Note or the date
for the payment of any other amount due thereunder or hereunder shall not be a
Business Day, then such payment 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, the date fixed for redemption or such other date for
payment, and, provided that payment is made on such next succeeding Business
Day, no interest shall accrue for the period of such extension.
SECTION 10.7 Conflict of Any Provision of Serial Indenture
with Trust Indenture Act. If and to the extent that any provision of this
Serial Indenture limits, qualifies or conflicts with another provision
included in this Serial Indenture by operation of Sections 310 to 317,
inclusive, of the Trust Indenture Act (an "incorporated provision"), such
incorporated provision shall control.
SECTION 10.8 New York Law to Govern. This Serial Indenture
and each Serial Mortgage Note 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 said State, except as may otherwise be required by
mandatory provisions of law.
SECTION 10.9 Counterparts. This Serial 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 Designated Representative. For purposes of
this Serial Indenture, all notices, requests, demands or other
communications to be given by California Petroleum hereunder may be given
by California Petroleum's designated representative. Notice of the
appointment of any such designated representative shall be given to the
Indenture Trustee and shall be in writing signed by California Petroleum
and acknowledged by such designated representative. The parties hereto
shall be entitled to rely upon any such notices, requests, demands and
other communications given by the designated representative as though the
same had been given by California Petroleum.
ARTICLE ELEVEN
REDEMPTION OF SERIAL MORTGAGE NOTES.
SECTION 11.1 Mandatory Redemption; Prices. (a) Except as
provided in this Section 11.01, the Serial Mortgage Notes may not be redeemed
prior to their respective Maturity Dates.
(b) California Petroleum shall redeem the Outstanding Serial
Mortgage Notes in part at 100% of the principal amount thereof together with
accrued interest to the date fixed for redemption if a Total Loss occurs or is
declared with respect to a Vessel. The aggregate principal amount of Serial
Mortgage Notes to be redeemed pursuant to this Section 11.1(b) shall equal the
Allocated Principal Amount of Serial Mortgage Notes for the related Vessel.
The redemption date for any redemption pursuant to this Section 11.1(b) shall
be the date which is 90 days after the occurrence of the Total Loss.
SECTION 11.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the holders of Serial Mortgage Notes to be redeemed
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 Serial Mortgage Notes 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 Serial
Mortgage Note designated for redemption as a whole or in part shall not affect
the validity of the proceedings for the redemption of any other Serial
Mortgage Note.
The notice of redemption to each such holder shall specify the
principal amount of each Serial Mortgage Note 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 Serial Mortgage Notes, that interest accrued to the date fixed for
redemption will be paid as specified in said notice and that on and after said
date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If any Serial Mortgage Note 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 Serial Mortgage Note, a new Serial Mortgage Note or Serial
Mortgage Notes in principal amount equal to the unredeemed portion thereof
will be issued.
The notice of redemption of Serial Mortgage Notes to be
redeemed shall be given by California Petroleum or, at California Petroleum's
request, by the Indenture Trustee in the name and at the expense of California
Petroleum.
On the redemption date specified in the notice of redemption
given as provided in this Section, California Petroleum shall deposit or cause
to be deposited with the Indenture Trustee or with the paying agent an amount
of money sufficient to redeem on the redemption date all the Serial Mortgage
Notes 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 Serial Mortgage Notes are to be redeemed California Petroleum will
deliver to the Indenture Trustee at least 45 days prior to the date fixed for
redemption an Officers' Certificate stating the aggregate principal amount of
Serial Mortgage Notes to be redeemed.
If less than all the Serial Mortgage Notes are to be redeemed,
the Indenture Trustee shall select Serial Mortgage Notes to be redeemed
ratably from each holder such that the ratio of the principal amount of each
series of Serial Mortgage Notes to be redeemed from each holder to the
aggregate principal amount of such series of Serial Mortgage Notes Outstanding
held by such holder shall, as nearly as practicable and subject to rounding,
equal the ratio of the aggregate principal amount of all Serial Mortgage Notes
to be redeemed on such redemption date to the aggregate principal amount of
all Serial Mortgage Notes Outstanding. Serial Mortgage Notes may be redeemed
in part in multiples of $1,000 only. The Indenture Trustee shall promptly
notify California Petroleum in writing of the Serial Mortgage Notes selected
for redemption and, in the case of any Serial Mortgage Notes selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Serial Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Serial Mortgage Notes shall relate,
in the case of any Serial Mortgage Note redeemed or to be redeemed only in
part, to the portion of the principal amount of such Serial Mortgage Note
which has been or is to be redeemed.
SECTION 11.3 Payment of Serial Mortgage Notes Called for
Redemption. If notice of redemption has been given as above provided, the
Serial Mortgage Notes or portions of Serial Mortgage Notes 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 California
Petroleum shall default in the payment of such Serial Mortgage Notes at the
redemption price, together with interest accrued to said date) interest on the
Serial Mortgage Notes or portions of Serial Mortgage Notes so called for
redemption shall cease to accrue and, except as provided in Sections 5.5 and
9.4, such Serial Mortgage Notes shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Serial
Indenture, and the holders thereof shall have no right in respect of such
Serial Mortgage Notes except the right to receive the redemption price thereof
and unpaid interest to the date fixed for redemption. On presentation and
surrender of such Serial Mortgage Notes at a place of payment specified in
said notice, said Serial Mortgage Notes or the specified portions thereof
shall be paid and redeemed by California Petroleum at the applicable
redemption price, together with interest accrued thereon to the date fixed for
redemption; provided that any semi-annual payment of interest becoming due on
the date fixed for redemption shall be payable to the holders of such Serial
Mortgage Notes registered as such on the relevant record date subject to the
terms and provisions of Section 2.4 hereof.
If any Serial Mortgage Note 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
Default Rate.
Upon presentation of any Serial Mortgage Note redeemed in part
only, California Petroleum shall execute and the Indenture Trustee shall
authenticate and deliver to or on the order of the holder thereof, at the
expense of California Petroleum, a new Serial Mortgage Note or Serial Mortgage
Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Serial Mortgage Note so presented.
ARTICLE TWELVE
SECURITY.
SECTION 12.1 Security. The Serial Mortgage Notes will be
secured by the Collateral pursuant to the Collateral Agreement and the other
Security Documents. Each holder of a Serial Mortgage Note, by its acceptance
thereof, consents and agrees to the terms of the Security Documents (including
without limitation the provisions providing for the release of the Collateral
provided for herein and therein) as the same may be in effect or may be
amended from time to time in accordance with their terms and authorizes and
directs the Indenture Trustee and the Collateral Trustee to perform its
respective obligations and exercise its respective rights under the Collateral
Agreement and the other Security Documents in accordance therewith; provided
that in the event the terms thereof limit, qualify or conflict with the duties
imposed by the provisions of the Trust Indenture Act, the Trust Indenture Act
shall control.
SECTION 12.2 Recording, etc. California Petroleum will cause
the applicable Security Documents, including the Mortgages and any financing
statements, all amendments or supplements to each of the foregoing and any
other similar security documents as necessary, to be registered, recorded and
filed or re-recorded, re-filed and renewed in such manner and in such place or
places, if any, as may be required by law or reasonably requested by the
Indenture Trustee or the Collateral Trustee in order fully to preserve and
protect the Lien of the Collateral Trustee securing the Serial Mortgage Notes
(for the ratable benefit of the Serial Noteholders) and to effectuate and
preserve the security of the Serial Noteholders and all rights of the
Collateral Trustee and the Indenture Trustee.
California Petroleum shall furnish the Trustee:
(a) promptly after the execution and delivery of this Serial
Indenture, and promptly after the execution and delivery of any other
instrument of further assurance or amendment, an Opinion of Counsel
either (i) stating that, in the opinion of such counsel, and as of
the dated such opinion, this Serial Indenture, the Mortgages and
applicable Security Documents and all other instruments of further
assurance or amendment have been properly recorded, registered and
filed, as appropriate, to the extent necessary to make effective the
Lien intended to be created by such Security Documents and reciting
the details of such action or referring to prior Opinions of Counsel
in which such details are given, and stating that as to such Security
Documents and such other instruments such recording, registering and
filing are the only recordings, registerings and filings necessary to
give notice thereof and that no re-recordings, re-registerings or
re-filings are necessary to maintain such notice, and further stating
that all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect
the rights of the Serial Noteholders the Indenture Trustee and the
Collateral Trustee hereunder and under the Security Documents or (ii)
stating that, in the opinion of such counsel, no such action is
necessary to make any other Lien created under any of the Security
Documents effective as intended by such Security Documents.
(b) within 30 days after August 1 in each year beginning with
the year 1995, an Opinion of Counsel, dated as of such date, either
(i) stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, registering, filing,
re-recording, re-registering and re-filing of this Serial Indenture
and all supplemental indentures, financing statements, continuation
statements or other instruments of further assurance as is necessary
to maintain the Lien of this Serial Indenture and the Security
Documents and reciting the details of such action or referring to
prior Opinions of Counsel in which such details are given, and
stating that all financing statements and continuation statements
have been executed and filed that are necessary fully to preserve and
protect the rights of the Serial Noteholders, the Indenture Trustee
and the Collateral Trustee hereunder and under the Security Documents
or (ii) stating that, in the opinion of such counsel, no such action
is necessary to maintain such Lien.
SECTION 12.3 Protection of the Trust Estate. The Indenture
Trustee and the Collateral Trustee shall have the power to enforce the
obligations of California Petroleum and Chevron under this Serial Indenture
and California Petroleum under the Security Documents, to institute and
maintain such suits and proceedings as it may deem expedient to prevent any
impairment of the Collateral under any of the Security Documents and in the
profits, rents, revenues and other income arising therefrom, including the
power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid if
the enforcement of, or compliance with, such enactment, rule or order would
impair any Collateral or be prejudicial to the interests of the Serial
Noteholders, the Indenture Trustee or the Collateral Trustee, to the extent
permitted thereunder.
SECTION 12.4 Release of Lien. (a) Subject to the provisions
of Section 7.2 and so long as no Enforcement Notice is in effect, Collateral
may be released from the Lien and security created by this Serial Indenture or
the Collateral Agreement and the Related Security Documents, as the case may
be, at any time or from time to time in accordance with the provisions of the
Related Security Documents, the Trust Indenture Act and as provided hereby.
In the case of Collateral consisting of cash or Permitted Investments in the
Trust Accounts, such Collateral shall be released as provided in the
Collateral Agreement without the need for any Officer's Certificate, Opinion
of Counsel, release, waiver or other action.
(b) Upon the request of California Petroleum pursuant to an
Officer's Certificate and an Opinion of Counsel certifying that all conditions
precedent hereunder have been met (to be provided at the sole cost and expense
of California Petroleum) and upon the satisfaction of such conditions
precedent hereunder, the Indenture Trustee or the Collateral Trustee, as the
case may be, shall release (i) Collateral, as to the release of which the
consent of Serial Noteholders has been obtained, and (ii) all Collateral
(except as provided in Article Nine hereof) upon discharge or defeasance of
this Serial Indenture in accordance with Article Nine hereof.
(c) Upon receipt of such Officer's Certificate, the Indenture
Trustee or the Collateral Trustee, as the case may be, must execute, deliver
or acknowledge any necessary or proper instruments of termination,
satisfaction or release to evidence the release of any Collateral permitted
to be released pursuant to this Serial Indenture or the Serial Indenture and
the Related Security Documents, as the case may be.
(d) The release of any Collateral from the terms of this
Serial Indenture or this Serial Indenture and the Related Security Documents,
as the case may be, will not be deemed to impair the security under this
Serial Indenture in contravention of the provisions hereof if and to the extent
the Collateral is released pursuant to the terms hereof and of the Related
Security Documents. To the extent applicable, California Petroleum and any
other obligor shall cause Section 314(d) of the Trust Indenture Act relating to
the release of property from the Lien arising out of the Security Documents to
be complied with. Any certificate or opinion required by Section 314(d) of
the Trust Indenture Act may be made by any Responsible Officer of California
Petroleum, provided that to the extent required by Section 314(d) of the Trust
Indenture Act, any such certificate or opinion shall be made by an independent
engineer, appraiser or other expert (as such terms are set forth in Section
314(d) of the Trust Indenture Act), who is not an Affiliate of California
Petroleum or any other obligor.
Whenever Collateral is to be released pursuant to this Section
12.4, the Indenture Trustee or the Collateral Trustee, as the case may be,
will execute any document or termination statement reasonably necessary to
release the Lien of this Serial Indenture or this Serial Indenture and the
Related Security Documents, as the case may be.
IN WITNESS WHEREOF, the parties hereto have caused this Serial
Indenture to be duly executed this ____ day of July, 1994 by their respective
officers thereunto duly authorized and acknowledge that this Serial Indenture
has been made and delivered in The City of New York, and this Serial Indenture
shall be effective only upon such execution and delivery.
CALIFORNIA PETROLEUM TRANSPORT
CORPORATION
By____________________________
[CORPORATE SEAL]
Attest:
By________________________
CHEMICAL TRUST COMPANY OF
CALIFORNIA, not in its
individual capacity, except
as expressly provided
herein, but as Indenture
Trustee
By____________________________
[CORPORATE SEAL]
Attest:
By________________________
CHEVRON CORPORATION, as
Guarantor of the Initial
Charter obligations of
Chevron Transport
Corporation
By____________________________
[CORPORATE SEAL]
Attest:
By________________________
EXHIBIT A
[FORM OF FACE OF SERIAL MORTGAGE NOTE]
Unless and until this Serial Mortgage Note is presented by an authorized
representative of the Depository Trust Company ("DTC"), to California
Petroleum Transport Corporation or its agents for registration of transfer,
exchange or payment, and any Serial Mortgage Note issued is registered in the
name of Cede & Co. or such other entity, as is requested by an authorized
representative of DTC (and any payment hereon is made to Cede & Co.), any
transfer, pledge or other use hereof for value or otherwise by or to any
Person is wrongful since the registered owner hereof, Cede & Co., has an
interest herein.
No. $
California Petroleum Transport Corporation
___% First Preferred Mortgage Notes Due ____
Payable from Charterhire Payments by
Chevron Transport Corporation
Whose Charter Obligations are Guaranteed by
Chevron Corporation
California Petroleum Transport Corporation, a Delaware
Corporation ("California Petroleum"), for value received hereby promises to
pay to ____________ or registered assigns the principal sum of __________
Dollars at the office or agency of Chemical Trust Company of
California (the "Indenture Trustee") or its paying agent under the Serial
Indenture dated as of (DATE), 1994 among California Petroleum, solely for
purposes of the Trust Indenture Act of 1939, as amended, Chevron Corporation
("Chevron"), and the Indenture Trustee (the "Serial Indenture"; terms defined
in the Serial Indenture are used herein as so defined) maintained for such
purpose in New York on ____, in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semi-annually on ______ and
________ of each year, on said principal sum in like coin or currency at the
rate per annum set forth above at said office or agency from the _________ or
the __________, as the case may be, next preceding the date of this Serial
Mortgage Note to which interest on the Serial Mortgage Notes has been paid or
duly provided for, unless the date hereof is a date to which interest on the
Serial Mortgage Notes has been paid or duly provided for, in which case from
the date of this Serial Mortgage Note, or unless no interest has been paid or
duly provided for on the Serial Mortgage Notes, in which case from ________,
1994 until payment of said principal sum has been made or duly provided for.
Notwithstanding the foregoing, if the date hereof is after any ________ or
________ and before the following ________ or _________, as the case may be,
this Serial Mortgage Note shall bear interest from such ________ or _______;
provided that, if California Petroleum shall default in the payment of
interest due on such _________ or ________ then this Serial Mortgage Note
shall bear interest from the next preceding __________ or _________ to which
interest on the Serial Mortgage Notes has been paid or duly provided for, or,
if no interest has been paid or duly provided for on the Serial Mortgage Notes
since the original issue date of this Serial Mortgage Note, from ________,
1994. The interest so payable on any _________ or _________ will, except as
otherwise provided in the Serial Indenture, be paid to the person in whose
name this Serial Mortgage Note is registered at the close of business on the
________ or _________ preceding such ________ or ___________, whether or not
such day is a Business Day.
Interest is payable on demand at the Default Rate on any
overdue payment of principal of, interest or any other amount payable on this
Serial Mortgage Note from the due date for such payment to the date such
amount is paid in full.
If any amount payable under this Serial Mortgage Note or under
the Serial Indenture falls due on a day that is not a Business Day, then such
amount shall be payable on the next succeeding Business Day without additional
interest thereon for the period of such extension (provided that payment is
made on such next succeeding Business Day).
Reference is made to the further provisions of this Serial
Mortgage Note set forth on the reverse hereof. Such further provisions shall
for all purposes have the same effect as though fully set forth at this place.
This Serial Mortgage Note shall not be valid or obligatory
until the certificate of authentication hereon shall have been duly signed by
the Indenture Trustee acting under the Serial Indenture.
IN WITNESS WHEREOF, California Petroleum has caused this
instrument to be duly executed under its corporate seal.
Dated:
[Seal]
______________________________
______________________________
[FORM OF REVERSE OF SERIAL MORTGAGE NOTE]
California Petroleum Transport Corporation
___% First Preferred Mortgage Notes Due ____
Payable from Charterhire Payments by
Chevron Transport Corporation
Whose Charter Obligations are Guaranteed by
Chevron Corporation
This Serial Mortgage Note is one of a duly authorized issue of
debt securities of California Petroleum maturing serially from 1995 to 2005,
limited as to the maturity hereof to the aggregate principal amount of $_____,
and limited as to all maturities of Serial Mortgage Notes to the aggregate
principal amount of $168,500,000 (except as otherwise provided in the Serial
Indenture), issued or to be issued pursuant to the Serial Indenture.
Reference is hereby made to the Serial Indenture, all indentures supplemental
thereto and the Collateral Agreement for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Indenture Trustee, California Petroleum, Chevron and the holders of the Serial
Mortgage Notes.
This Serial Mortgage Note is secured by the Collateral pursuant
to the Collateral Agreement and the other Security Documents. Each holder of
this Serial Mortgage Note, by its acceptance thereof, consents and agrees to
the terms of the Security Documents (including without limitation the
provisions providing for the release of the Collateral provided for herein and
therein) as the same may be in effect or may be amended from time to time in
accordance with their terms and authorizes and directs the Indenture Trustee
and the Collateral Trustee to perform their respective obligations and
exercise their respective rights under the Collateral Agreement and the other
Security Documents in accordance therewith; provided that in the event the
terms thereof limit, qualify or conflict with the duties imposed by the
provisions of the Trust Indenture Act, the Trust Indenture Act shall control.
In case an Indenture Event of Default shall have occurred and
be continuing, the principal of all the Serial Mortgage Notes may be declared
due and payable, in the manner and with the effect, and subject to the
conditions, provided in the Serial Indenture. The Serial Indenture provides
that in certain events such declaration and its consequences may be waived by
the holders of a majority in aggregate principal amount of the Serial Mortgage
Notes then Outstanding and that, prior to any such declaration, such holders
may waive any past default under the Serial Indenture and its consequences
except a default in the payment of principal of or interest on any of the
Serial Mortgage Notes. Any such consent or waiver by the holder of this Serial
Mortgage Note (unless revoked as provided in the Serial Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Serial Mortgage Note and any Serial Mortgage Note which may be issued
in exchange or substitution herefor, whether or not any notation thereof is
made upon this Serial Mortgage Note or such other Serial Mortgage Notes.
The Serial Indenture permits California Petroleum, Chevron and
the Indenture Trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of the Serial Mortgage Notes at the
time Outstanding, evidenced as provided in the Serial Indenture, to execute
supplemental indentures adding any provisions to or changing in any manner or
eliminating any of the provisions of the Serial Indenture or of any
supplemental indenture or modifying in any manner the rights of the holders of
the Serial Mortgage Notes; provided that no such supplemental indenture shall
(a) extend the final maturity of any Serial Mortgage Note, 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 the redemption hereof, or
impair or affect the rights of any Serial Noteholder to institute suit for the
payment thereof without the consent of the holder of each Serial Mortgage Note
so affected; or (b) reduce the aforesaid percentage of Serial Mortgage Notes,
the consent of the holders of which is required for any such supplemental
indenture, without the consent of the holders of all Serial Mortgage Notes then
Outstanding; provided further that no such supplemental indenture shall (i)
change in any manner or eliminate Sections 3.5, 3.8 or 3.9 of the Serial
Indenture or any of the Indenture Events of Default set forth in Section 4.1
thereof or (ii) effect any of the modifications described in clause (a) or (b)
above, without the consent pursuant to Section 7.03(d) of the Collateral
Agreement of the Collateral Trustee and the holders of a majority in aggregate
principal amount of Term Mortgage Notes outstanding under the Term Indenture.
No reference herein to the Serial Indenture and no provision of
this Serial Mortgage Note or of the Serial Indenture shall alter or impair the
obligation of California Petroleum, which is absolute and unconditional, to
pay the principal of and interest on this Serial Mortgage Note at the place,
times, and rate, and in the currency, herein prescribed.
The Serial Mortgage Notes are issuable only as registered
Serial Mortgage Notes without coupons in denominations of $_____ and any
multiple of $1,000.
Serial Mortgage Notes may be exchanged for a like aggregate
principal amount of Serial Mortgage Notes of other authorized denominations at
the office or agency of the Indenture Trustee maintained for such purpose and
in the manner and subject to the limitations provided in the Serial Indenture.
Upon due presentment for registration of transfer of this
Serial Mortgage Note as provided in the Serial Indenture, a new Serial
Mortgage Note or Serial Mortgage Notes of authorized denominations, for a like
aggregate principal amount, will be issued to the transferee as provided in
the Serial Indenture. No service charge shall be made for any such transfer,
but the Indenture Trustee may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto.
The Serial Mortgage Notes are also subject to redemption in
relevant part on notice as set forth above and at 100% of the principal amount
thereof together with accrued interest to the date fixed for redemption, all as
provided in the Serial Indenture if a Total Loss occurs or is declared with
respect to a Vessel. The aggregate principal amount of each series of Serial
Mortgage Notes to be redeemed pursuant to this paragraph shall equal the
Allocated Principal Amount of such Serial Mortgage Notes for the related
Vessel. The redemption date for any redemption pursuant to this paragraph
shall be the date which is 90 days after the occurrence of the Total Loss.
Subject to payment by California Petroleum of a sum sufficient
to pay the amount due on redemption, interest on this Serial Mortgage Note (or
portion hereof if this Serial Mortgage Note is redeemed in part) shall cease to
accrue upon the date duly fixed for redemption of this Serial Mortgage Note
(or portion hereof if this Serial Mortgage Note is redeemed in part).
California Petroleum, Chevron, the Indenture Trustee, and any
authorized agent of California Petroleum, Chevron or the Indenture Trustee,
may deem and treat the registered holder hereof as the absolute owner of this
Serial Mortgage Note (whether or not this Serial Mortgage Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than California Petroleum or the Indenture Trustee or any
authorized agent of California Petroleum or the Indenture Trustee), for the
purpose of receiving payment of, or on account of, the principal hereof and,
subject to the provisions on the face hereof, interest hereon and for all
other purposes, and neither California Petroleum nor Chevron nor the Indenture
Trustee nor any authorized agent of California Petroleum or Chevron or the
Indenture Trustee shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Serial Mortgage Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Serial Indenture
or any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of California Petroleum
or of any successor corporation, either directly or through California
Petroleum or any successor corporation, whether by virtue of any constitution,
statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of
the consideration for the issue hereof, expressly waived and released.
[FORM OF INDENTURE TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Serial Mortgage Notes described in the
within-mentioned Serial Indenture.
Chemical Trust Company of
California, as Indenture
Trustee
________________________
Authorized Officer