EXHIBIT 4.1
MARATHON OIL CORPORATION,
Issuer
and
JPMORGAN CHASE BANK,
Trustee
INDENTURE
----------
Dated as of February 26, 2002
----------
Senior Debt Securities
RECONCILIATION AND TIE BETWEEN SECTIONS 3.10 THROUGH 3.18(a),
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
AND SECTIONS OF THIS INDENTURE:
<Table>
<Caption>
Section of
Trust Indenture Sections of
Act of 1939 Indenture
- --------------- -----------
Section 3.10 (a)(1)......................................................................... 6.09
(a)(2)......................................................................... 6.09
(a)(3)......................................................................... Not Applicable
(a)(4)......................................................................... Not Applicable
(a)(5)......................................................................... 6.09
(b)............................................................................ 6.08, 6.10
Section 3.11 (a)............................................................................ 6.13
(b)............................................................................ 6.13
(c)............................................................................ Not Applicable
Section 3.12 (a)............................................................................ 7.01, 7.02
(b)............................................................................ 7.02
(c)............................................................................ 7.02
Section 3.13 (a)............................................................................ 7.03
(b)............................................................................ 7.03
(c)............................................................................ 7.03
(d)............................................................................ 7.03
Section 3.14 (a)............................................................................ 7.04
(a)(4)......................................................................... 1.01, 10.04
(b)............................................................................ Not Applicable
(c)(1)......................................................................... 1.02
(c)(2)......................................................................... 1.02
(c)(3)......................................................................... Not Applicable
(d)............................................................................ Not Applicable
(e)............................................................................ 1.02
Section 3.15 (a)............................................................................ 6.01, 6.03
(b)............................................................................ 6.02
(c)............................................................................ 6.01
(d)(1)......................................................................... 6.01
(d)(2)......................................................................... 6.01, 6.03
(d)(3)......................................................................... 6.01, 6.03
(e)............................................................................ 5.14
Section 3.16 (a)(1)(A)...................................................................... 5.02, 5.12
(a)(1)(B)...................................................................... 5.13
(a)(2)......................................................................... Not Applicable
(a) (last sentence)............................................................ 1.01
(b)............................................................................ 5.08
(c)............................................................................ 1.04
Section 3.17 (a)(1)......................................................................... 5.03
(a)(2)......................................................................... 5.04
(b)............................................................................ 10.03
Section 3.18 (a)............................................................................ 1.07
</Table>
- ----------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
Table of Contents
<Table>
<Caption>
Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................................1
SECTION 1.01 Definitions...........................................................................1
SECTION 1.02 Compliance Certificates and Opinions..................................................8
SECTION 1.03 Form of Documents Delivered to Trustee................................................8
SECTION 1.04 Acts of Holders; Record Dates.........................................................9
SECTION 1.05 Notices, Etc., to Trustee and Company................................................10
SECTION 1.06 Notice to Holders; Waiver of Notice..................................................10
SECTION 1.07 Conflict With Trust Indenture Act....................................................10
SECTION 1.08 Effect of Headings and Table of Contents.............................................11
SECTION 1.09 Successors and Assigns...............................................................11
SECTION 1.10 Separability Clause..................................................................11
SECTION 1.11 Benefits of Indenture; No Recourse Against Others....................................11
SECTION 1.12 Governing Law........................................................................11
SECTION 1.13 Legal Holidays.......................................................................12
ARTICLE II SECURITY FORMS........................................................................................12
SECTION 2.01 Forms Generally......................................................................12
SECTION 2.02 Form of Face of Security.............................................................12
SECTION 2.03 Form of Reverse of Security..........................................................14
SECTION 2.04 Form of Legend for Global Securities.................................................18
SECTION 2.05 Form of Trustee's Certificate of Authentication......................................18
ARTICLE III THE SECURITIES.......................................................................................19
SECTION 3.01 Amount Unlimited; Issuable in Series.................................................19
SECTION 3.02 Denominations........................................................................21
SECTION 3.03 Execution, Authentication, Delivery and Dating.......................................22
SECTION 3.04 Temporary Securities.................................................................23
SECTION 3.05 Registration, Registration of Transfer and Exchange..................................23
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.....................................25
SECTION 3.07 Payment of Interest; Interest Rights Preserved.......................................26
SECTION 3.08 Persons Deemed Owners................................................................27
SECTION 3.09 Cancellation.........................................................................28
SECTION 3.10 Computation of Interest..............................................................28
ARTICLE IV SATISFACTION AND DISCHARGE............................................................................28
SECTION 4.01 Satisfaction and Discharge of Indenture..............................................28
SECTION 4.02 Application of Trust Money...........................................................29
ARTICLE V REMEDIES 30
SECTION 5.01 Events of Default....................................................................30
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment...................................31
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee......................32
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i
<Table>
SECTION 5.04 Trustee May File Proofs of Claim.....................................................33
SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities..........................34
SECTION 5.06 Application of Money Collected.......................................................34
SECTION 5.07 Limitation on Suits..................................................................35
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium and Interest............35
SECTION 5.09 Restoration of Rights and Remedies...................................................36
SECTION 5.10 Rights and Remedies Cumulative.......................................................36
SECTION 5.11 Delay or Omission Not Waiver.........................................................36
SECTION 5.12 Control by Holders...................................................................36
SECTION 5.13 Waiver of Past Defaults..............................................................37
SECTION 5.14 Undertaking for Costs................................................................37
SECTION 5.15 Waiver of Usury, Stay or Extension Laws..............................................37
ARTICLE VI THE TRUSTEE...........................................................................................38
SECTION 6.01 Certain Duties and Responsibilities..................................................38
SECTION 6.02 Notice of Defaults...................................................................38
SECTION 6.03 Certain Rights of Trustee............................................................38
SECTION 6.04 Not Responsible for Recitals or Issuance of Securities...............................39
SECTION 6.05 May Hold Securities..................................................................40
SECTION 6.06 Money Held in Trust..................................................................40
SECTION 6.07 Compensation, Reimbursement and Indemnification......................................40
SECTION 6.08 Conflicting Interests................................................................41
SECTION 6.09 Corporate Trustee Required; Eligibility..............................................41
SECTION 6.10 Resignation and Removal; Appointment of Successor....................................41
SECTION 6.11 Acceptance of Appointment by Successor...............................................43
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business..........................44
SECTION 6.13 Preferential Collection of Claims Against Company....................................44
SECTION 6.14 Appointment of Authenticating Agent..................................................45
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY....................................................47
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders............................47
SECTION 7.02 Preservation of Information; Communications to Holders...............................47
SECTION 7.03 Reports by Trustee...................................................................47
SECTION 7.04 Reports by Company...................................................................48
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................48
SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms.................................48
SECTION 8.02 Successor Substituted................................................................49
SECTION 8.03 Trustee Entitled to Opinion..........................................................49
ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................50
SECTION 9.01 Supplemental Indentures Without Consent of Holders...................................50
SECTION 9.02 Supplemental Indentures With Consent of Holders......................................51
SECTION 9.03 Execution of Supplemental Indentures.................................................52
SECTION 9.04 Effect of Supplemental Indentures....................................................52
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<Table>
SECTION 9.05 Conformity With Trust Indenture Act..................................................52
SECTION 9.06 Reference in Securities to Supplemental Indentures...................................53
ARTICLE X COVENANTS..............................................................................................53
SECTION 10.01 Payment of Principal, Premium and Interest...........................................53
SECTION 10.02 Maintenance of Office or Agency......................................................53
SECTION 10.03 Money for Securities Payments to be Held in Trust....................................54
SECTION 10.04 Statement by Officers as to Default..................................................55
SECTION 10.05 Mortgage of Certain Property.........................................................55
SECTION 10.06 Sale and Leaseback of Certain Properties.............................................56
SECTION 10.07 Waiver of Certain Covenants..........................................................58
ARTICLE XI REDEMPTION OF SECURITIES..............................................................................58
SECTION 11.01 Applicability of Article.............................................................58
SECTION 11.02 Election to Redeem; Notice to Trustee................................................58
SECTION 11.03 Selection by Trustee of Securities to be Redeemed....................................59
SECTION 11.04 Notice of Redemption.................................................................60
SECTION 11.05 Deposit of Redemption Price..........................................................60
SECTION 11.06 Securities Payable on Redemption Date................................................60
SECTION 11.07 Securities Redeemed in Part..........................................................61
ARTICLE XII SINKING FUNDS........................................................................................61
SECTION 12.01 Applicability of Article.............................................................61
SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities................................62
SECTION 12.03 Redemption of Securities for Sinking Fund............................................62
ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE..................................................................62
SECTION 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.........................62
SECTION 13.02 Defeasance and Discharge.............................................................63
SECTION 13.03 Covenant Defeasance..................................................................63
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance......................................64
SECTION 13.05 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Miscellaneous Provisions.............................................................66
SECTION 13.06 Reinstatement........................................................................67
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iii
INDENTURE, dated as of February 26, 2002, between MARATHON OIL CORPORATION,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 5555 San
Felipe Road, Houston, Texas 77056-2723, and JPMORGAN CHASE BANK, a corporation
duly organized and existing under the laws of the State of New York, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them
in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
expressly provided herein, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation;
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or a Section, as the case may be,
of this Indenture; and
1
(5) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision of this Indenture.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities of
one or more series.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission.
"Company" means Marathon Oil Corporation until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean that successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, any Vice
Chairman of the Board, Chief Executive Officer, President, Chief Operating
Officer, Chief Financial Officer or any Vice President, and by its Treasurer,
any Assistant Treasurer, the Comptroller, any Assistant Comptroller, its
Secretary or any Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate value of all assets
of the Company and its Subsidiaries after deducting therefrom (i) all current
liabilities (excluding all long-term debt due within one year), (ii) all
investments in unconsolidated subsidiaries and all investments accounted for on
the equity basis, and (iii) all goodwill, patents and trademarks, unamortized
debt discounts and other similar intangibles (all determined in conformity with
generally accepted accounting principles and calculated on a basis consistent
with the Company's most recent audited consolidated financial statements).
2
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
at the date of original execution of this Indenture is located at JPMorgan Chase
Bank, 600 Travis Street, Suite 1150, Houston, Texas 77002, Attention: Mr. Gary
Jones, except that, with respect to presentation of securities for payment or
registration of transfers or exchanges, such term means the office or agency of
the Trustee located at JPMorgan Chase Bank, 55 Water Street, North Building,
Room 234, New York, New York 10041.
"corporation" includes associations, corporations, companies, limited
liability companies and business trusts.
"Covenant Defeasance" has the meaning specified in Section 13.03.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Defeasance" has the meaning specified in Section 13.02.
"Depositary" means, with respect to Securities of any series issuable or
issued in whole or in part in the form of one or more Global Securities, a
clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Securities as contemplated by Section 3.01.
"Dollar" means the coin or currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
"Establishment Action" shall mean
(i) resolution duly adopted by the Company's board of directors
establishing one or more series of Securities and authorizing the
issuance of any Security or
(ii) a resolution or action by a committee, officer or employee of the
Company, establishing one or more series of Securities and/or
authorizing the issuance of any Security, in each case, pursuant
to a resolution duly adopted by the Company's board of directors.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Foreign Currency" means a currency of the government, or governments, of
any country, or countries, other than the United States of America.
"Foreign Government Obligations" means, with respect to the Securities of
any series that are denominated in a Foreign Currency, securities that are
3
(i) direct obligations of the government, or governments, that issued
or caused to be issued such currency for the payment of which
obligations its, or their, full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government, or governments,
the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, or
governments,
which, in either case under clause (i) or (ii), are not callable or redeemable
at the option of the issuer thereof.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 2.04 (or such
legend as may be specified as contemplated by Section 3.01 for such Securities).
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto.
"interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means, as the context may require, (i) to mortgage, pledge,
encumber or subject to a lien or (ii) a mortgage, pledge, encumbrance or lien.
"Notice of Default" means a written notice of the kind specified in Section
5.01(4).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, any Vice Chairman of the Board, Chief Executive Officer, President, Chief
Operating Officer, Chief Financial Officer or any Vice President, and by the
Treasurer, any Assistant Treasurer, the Comptroller, any Assistant Comptroller,
the Secretary or any Assistant Secretary, of the Company, and delivered to the
Trustee. One of the officers signing an Officers' Certificate given pursuant to
Section 10.04 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Company, and who shall be reasonably acceptable
to the Trustee.
4
"Original Issue Discount Security" means any Security which provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the
Trustee has been made;
(iii) Securities as to which Defeasance has been effected pursuant to
Section 13.02; and
(iv) Securities which have been paid pursuant to Section 3.06 or
issued in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall
have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands
such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date:
(A) the principal amount of an Original Issue Discount Security
which shall be deemed to be Outstanding shall be the amount of
the principal thereof which would be due and payable as of such
date of such determination upon acceleration of the Maturity
thereof to such date pursuant to Section 5.02;
(B) if, as of such date, the principal amount payable at the Stated
Maturity of a Security is not determinable, the principal amount
of such Security which shall be deemed to be Outstanding shall
be the amount as specified or determined as contemplated by
Section 3.01;
(C) the principal amount of a Security denominated in one or more
foreign currencies or currency units which shall be deemed to be
Outstanding shall be the U.S. dollar equivalent, determined as
of such date in the manner provided as contemplated by Section
3.01, of the principal amount
5
of such Security (or, in the case of a Security described in
clause (A) or (B) above, of the amount determined as provided in
such clause); and
(D) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand,
authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned
shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means the Company or any Person authorized by the Company to
pay the principal of and/or any premium or interest on any Securities on behalf
of the Company.
"Person" means any individual, association, corporation, partnership, joint
venture, limited liability company, joint-stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of and/or any premium or interest
on the Securities of that series are payable as specified as contemplated by
Section 3.01(6).
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 3.01.
"Responsible Officer," when used with respect to the Trustee, means an
officer in the Institutional Trust Services department of the Trustee having
direct responsibility for administration of this Indenture.
6
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933 and any statute successor
thereto, in each case as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, and if at any time there is
more than one such Person, "Trustee" as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that series.
"United States" means the United States of America (including the states
and the District of Columbia) and its possessions at the relevant date. As of
the date of this Indenture, the possessions of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"U.S. Government Obligation" has the meaning specified in Section 13.04.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Power" means the total voting power represented by all outstanding
shares of all classes of Voting Stock.
"Voting Stock" means a corporation's stock of any class or classes (however
designated), including membership interests, membership shares or other similar
equity interests, having
7
ordinary Voting Power for the election of the directors of such corporation,
other than stock having such power only by reason of the happening of a
contingency.
SECTION 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for certificates provided for in
Section 10.04) shall include,
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein
relating thereto;
(2) 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;
(3) a statement that, in the opinion of each such individual, 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
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
8
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04 Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is herein expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
The Company may, in the circumstances permitted by the Trust Indenture Act,
fix any day as the record date for the purpose of determining the Holders of
Securities entitled to give or take any request, demand, authorization,
direction, notice, consent, waiver or other action, or to vote on any action,
authorized or permitted to be given or taken by Holders of Securities. If not
set by the Company prior to the first solicitation of a Holder of Securities
made by any Person in respect of any such action, or, in the case of any such
vote, prior to such vote, the record date for any such action or vote shall be
the 30th day (or, if later, the date of the most recent list of Holders required
to be provided) prior to such first solicitation or vote, as the case may be.
With regard to any record date, only the Holders of Securities on such date (or
their duly designated proxies) shall be entitled to give or take, or vote on,
the relevant action.
9
SECTION 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing
to or with and received by the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company
addressed to: the address last furnished in writing to the Trustee by
the Company, or, if no such address has been furnished, Treasurer,
Marathon Oil Corporation, 5555 San Felipe Road, Houston, Texas
77056-2723.
SECTION 1.06 Notice to Holders; Waiver of Notice.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to
receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the validity
of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.07 Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act which is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
which may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
10
SECTION 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.09 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture; No Recourse Against Others.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors hereunder
and the Holders, any benefit or any legal or equitable right, remedy or claim
under this Indenture. A director, officer, employee, stockholder, partner or
other owner of the Company or the Trustee, as such, shall not have any liability
for any obligations of the Company under the Securities or for any obligations
of the Company or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of those obligations or their creation. Each Holder by
accepting a Security waives and releases all that liability. The waiver and
release shall be part of the consideration for the issue of Securities.
SECTION 1.12 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
PRINCIPLES OF CONFLICTS OF LAWS THEREUNDER TO THE EXTENT THE APPLICATION OF THE
LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date or
Redemption Date, or at the Stated Maturity.
11
ARTICLE II
SECURITY FORMS
SECTION 2.01 Forms Generally.
The Securities of each series shall be in substantially the form set forth
in this Article, or in such other form as shall be established by an
Establishment Action or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution thereof. If the form of Securities of any series is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of such
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 2.02 Form of Face of Security.
[Insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
MARATHON OIL CORPORATION
[Insert title of the Series]
No. $
------------ ------------
MARATHON OIL CORPORATION, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company," which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ________________, or
registered assigns, the principal sum of ________________ Dollars on
________________ [if the Security is to bear interest prior to Maturity,
insert -- , and to pay interest thereon from ________________ or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on ________________ and ________________ in
each year, commencing ____________, at the rate of ____% per annum, until
the principal hereof is paid or made available for payment [if applicable,
insert -- , provided that any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the rate
of ____% per annum (to the extent that the payment of such interest shall
be legally enforceable), from the dates such amounts are due until they are
paid or made available for payment, and such interest shall be payable on
demand]. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date will, as provided in such Indenture, be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of
12
business on the Regular Record Date for such interest, which shall be the
________________ or ________________ (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease
to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities of this series not
less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case
of a default in payment of principal upon acceleration, upon redemption or
at Stated Maturity and in such case the overdue principal and any overdue
premium shall bear interest at the rate of ____% per annum (to the extent
that the payment of such interest shall be legally enforceable), from the
dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on
demand. [Any such interest on overdue principal or premium which is not
paid on demand shall bear interest at the rate of ___% per annum (to the
extent that the payment of such interest on interest shall be legally
enforceable), from the date of such demand until the amount so demanded is
paid or made available for payment. Interest on any overdue interest shall
be payable on demand.]]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ________________, in
such [coin or currency of the United States of America] [Foreign Currency,
consistent with the provisions below,] as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
provided, however, that at the option of the Company payment of interest
may be made by check mailed to the address of the Person entitled thereto
as such address shall appear in the Security Register or by electronic
funds transfer to an account maintained by the Person entitled thereto as
specified in the Security Register, provided that such Person shall have
given the Trustee written instructions].
[If the security is payable in a foreign currency, insert the
appropriate provision.]
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
13
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: .
----------------------
MARATHON OIL CORPORATION
By
--------------------------------------
Attest:
-----------------------------------------
SECTION 2.03 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of February 26, 2002 (herein called the
"Indenture," which term shall have the meaning assigned to it in such
instrument), between the Company and JPMorgan Chase Bank, as Trustee (herein
called the "Trustee," which term includes any successor trustee under the
Indenture), and reference is hereby made to the Indenture for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable,
insert -- , limited in aggregate principal amount to $________].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, [if applicable, insert --
(1) on ________________ in any year commencing with the year ________ and ending
with the year ________ through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)] at any time
[if applicable, insert -- on or after ________________, 20____], as a whole or
in part, at the election of the Company, at the following Redemption Prices
(expressed as percentages of the principal amount): If redeemed [if applicable,
insert -- on or before ___________________, ____%, and if redeemed] during the
12-month period beginning ________________ of the years indicated,
<Table>
<Caption>
Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
</Table>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking
14
fund or otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (1) on ________________
in any year commencing with the year ______ and ending with the year ______
through operation of the sinking fund for this series at the Redemption Prices
for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if
applicable, insert -- on or after ______], as a whole or in part, at the
election of the Company, at the Redemption Prices for redemption otherwise than
through operation of the sinking fund (expressed as percentages of the principal
amount) set forth in the table below: If redeemed during the 12-month period
beginning ________________ of the years indicated,
<Table>
<Caption>
Redemption Price
Redemption Price for Redemption Otherwise
for Redemption Through Than Through Operation
Year Operation of the Sinking Fund of the Sinking Fund
- ---- ----------------------------- ------------------------
</Table>
and thereafter at a Redemption Price equal to ____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
[If applicable, insert -- The sinking fund for this series provides for the
redemption on __________ in each year beginning with the year ______ and ending
with the year ______ of [if applicable, insert -- not less than $________
("mandatory sinking fund") and not more than] $________ aggregate principal
amount of Securities of this series. Securities of this series acquired or
redeemed by the Company otherwise than through [if applicable, insert --
mandatory] sinking fund payments may be credited against subsequent [if
applicable, insert -- mandatory] sinking fund payments otherwise required to be
made [if applicable, insert -- , in the inverse order in which they become
due].]
[If the Security is subject to redemption of any kind, insert -- In the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert -- The Indenture contains provisions for defeasance
at any time of [the entire indebtedness of this Security] [or] [certain
restrictive covenants and Events of Default
15
with respect to this Security] [, in each case] upon compliance with certain
conditions set forth in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal, premium and interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and premium and interest, if any, on the Securities of this series
shall terminate.]
[If applicable, insert a paragraph regarding the indexing of the Security.]
The Indenture contains provisions permitting the Company and the Trustee to
modify the Indenture or any supplemental indenture without the consent of the
Holders for one or more of the following purposes: (1) to evidence the
succession of another corporation to the Company; (2) to add to the covenants of
the Company; (3) to add additional events of default for the benefit of Holders
of all or any series of Securities; (4) to add to or change provisions of the
Indenture to allow the issuance of Securities in other forms; (5) to add to,
change or eliminate any of the provisions of the Indenture in respect of one or
more series of Securities thereunder, under certain conditions specified
therein; (6) to secure the Securities pursuant to the requirements of Section
10.05 of the Indenture or otherwise; (7) to establish the form or terms of
Securities of any series as permitted by Sections 2.01 and 3.01 of the
Indenture; (8) to evidence the appointment of a successor Trustee; and (9) to
cure any ambiguity, to correct or supplement any provision of the Indenture
which may be defective or inconsistent with any other provision of the
Indenture, or to make any other provisions with respect to matters or questions
arising under the Indenture as shall not adversely affect the interests of the
Holders in any material respect.
The Indenture also permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall
16
have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities of this series, the Holders of not less
than 25% in principal amount of the Securities of this series at the time
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $________ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
17
SECTION 2.04 Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 3.01 for the
Securities evidenced thereby, every Global Security authenticated and delivered
hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for
a Security registered, and no transfer of this Security in whole or in part
may be registered, in the name of any Person other than such Depositary or
a nominee thereof, except in the limited circumstances described in the
Indenture.
SECTION 2.05 Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
As Trustee
By
-------------------------------------
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series. The
terms of each series of Securities shall be either:
(i) established in an Establishment Action; or
(ii) established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series.
Such Establishment Action or supplemental indenture shall provide:
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series) and
a statement that the Securities will be offered pursuant to this
Indenture;
18
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06
or 11.07 and except for any Securities which, pursuant to Section
3.03, are deemed never to have been authenticated and delivered
hereunder) and the price (expressed as a percentage of the aggregate
principal amount thereof) at which the Securities of the series will
be issued;
(3) the Person to whom any interest on a Security of the series shall be
payable, if other than the Person in whose name that Security (or one
or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable;
(5) the rate or rates at which any Securities of the series shall bear
interest, if any, the date or dates from which any such interest
shall accrue, the Interest Payment Dates on which any such interest
shall be payable and the Regular Record Date for any such interest
payable on any Interest Payment Date;
(6) the place or places where the principal of and/or any premium or
interest on any Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which, the
currency or currencies (including currency units) in which and the
other terms and conditions upon which any Securities of the series
may be redeemed, in whole or in part, at the option of the Company
and, if other than by a Board Resolution, the manner in which any
election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of the Holder thereof and the period or
periods within which, the price or prices at which and the terms and
conditions upon which any Securities of the series shall be redeemed
or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series
shall be issuable;
(10) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an
index, pursuant to a formula or other method, the manner in which
such amounts shall be determined;
(11) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or
any premium or interest on any Securities of the series shall be
payable and the manner of determining the equivalent thereof in the
currency of the United States of America for any
19
purpose, including for purposes of the definition of "Outstanding" in
Section 1.01;
(12) if the principal of or any premium or interest on any Securities of
the series is to be payable, at the election of the Company or the
Holder thereof, in one or more currencies or currency units other
than that or those in which such Securities are stated to be payable,
the currency, currencies or currency units in which the principal of
or any premium or interest on such Securities as to which such
election is made shall be payable, the periods within which and the
terms and conditions upon which such election is to be made and the
amount so payable (or the manner in which such amount shall be
determined);
(13) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 5.02;
(14) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or
more dates prior to the Stated Maturity, the amount which shall be
deemed to be the principal amount of such Securities as of any such
date for any purpose thereunder or hereunder, including the principal
amount thereof which shall be due and payable upon any Maturity other
than the Stated Maturity or which shall be deemed to be Outstanding
as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount
shall be determined);
(15) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 13.02 or
Section 13.03 or both such Sections (or, if defeasible by another
method, such other method) and, if other than by an action pursuant
to a Board Resolution, the manner in which any election by the
Company to defease such Securities shall be evidenced;
(16) if applicable, that any Securities of the series shall be issuable in
whole or in part in the form of one or more Global Securities and, in
such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in
Section 2.04 and any circumstances in addition to or in lieu of those
set forth in clause (2) of the last paragraph of Section 3.05 in
which any such Global Security may be exchanged in whole or in part
for Securities registered, and any transfer of such Global Security
in whole or in part may be registered, in the name or names of
Persons other than the Depositary for such Global Security or a
nominee thereof;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the
Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.02;
20
(18) any addition to or change in the covenants set forth in Article X
which applies to Securities of the series; and
(19) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture, except as permitted by Section
9.01(5)).
All Securities of any one series shall be substantially identical except as
to denomination and except as may otherwise be provided in the Establishment
Action referred to above or in any indenture supplemental hereto. The Company
shall provide to the Trustee a copy of any such Establishment Action.
SECTION 3.02 Denominations.
The Securities of each series shall be issuable only in registered form
without coupons and only in such denominations as shall be specified as
contemplated by Section 3.01. In the absence of any such specified denomination
with respect to the Securities of any series, the Securities of such series
shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, any Vice Chairman of the Board, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Treasurer or an Assistant Treasurer or its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Security.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established by one or
more Establishment Actions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating:
(1) if the form of such Securities has been established by an
Establishment Action as permitted by Section 2.01, that such form has
been established in conformity with the provisions of this Indenture;
21
(2) if the terms of such Securities have been established by an
Establishment Action as permitted by Section 3.01, that such terms
have been established in conformity with the provisions of this
Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company enforceable in accordance
with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to
general equity principles.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Establishment Action otherwise
required pursuant to Section 3.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to such preceding paragraph at or prior to the
authentication of each Security of such series if such documents are delivered
at or prior to the authentication upon original issuance of the first Security
of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.09, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 3.04 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
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If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Securities of the same series, of any authorized denominations and of like tenor
and aggregate principal amount. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
SECTION 3.05 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept in an office or agency of the Company in
a Place of Payment a register (the register maintained in any such office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee, or any other party
serving in such capacity with the Trustee's consent, is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers of
Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at
the office or agency of the Company in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of like tenor and aggregate
principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or
23
exchange of Securities, other than exchanges pursuant to Section 3.04, 9.06 or
11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are
to be redeemed in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of any
such Securities selected for redemption under Section 11.03 and ending at the
close of business on the day of such mailing, or (B) to register the transfer of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The provisions of the following clauses shall apply only to Global
Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this
Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities
registered, and no transfer of a Global Security in whole or in part
may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless:
(A) such Depositary
(i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or
(ii) has ceased to be a clearing agency registered under the
Exchange Act;
(B) there shall have occurred and be continuing an Event of Default
with respect to such Global Security; or
(C) there shall exist such circumstances, if any, in addition to or
in lieu of the foregoing as have been specified for this purpose
as contemplated by Section 3.01.
(3) Subject to clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities
issued in exchange for a Global Security or any portion thereof shall
be registered in such names as the Depositary for such Global
Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or
any portion thereof, whether pursuant to this Section, Section 3.04,
3.06, 9.06 or 11.07 or otherwise, shall be
24
authenticated and delivered in the form of, and shall be, a Global
Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee
thereof.
SECTION 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall
25
forthwith cease to be payable to the Holder on the relevant Regular Record Date
by virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company, at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon, the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be given to each
Holder of Securities of such series in the manner set forth in
Section 1.06, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such
26
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of and any premium and (subject to Section 3.07)
any interest on such Security and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 3.09 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. Until directed
otherwise by a Company Order, all cancelled Securities held by the Trustee shall
be conspicuously marked as such and thereafter treated in accordance with the
Trustee's document retention policies; provided, however, if any cancelled
Security is destroyed by the Trustee, the Trustee shall deliver to the Company a
certificate with respect to such destruction.
SECTION 3.10 Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
with respect to any (or all) series of Securities (except as to any surviving
rights of registration of transfer or exchange of Securities herein expressly
provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture
with respect to such Securities, when:
(1) either
(A) all such Securities theretofore authenticated and delivered
(other than
(i) Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section
3.06 and
27
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose money in an amount sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of
this Indenture with respect to such Securities have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 4.02, Article VI and
the last paragraph of Section 10.03 shall survive.
SECTION 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
28
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE V
REMEDIES
SECTION 5.01 Events of Default.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of or any premium on any
Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by
the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a
period of 90 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of a decree
or order
(A) for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law;
(B) adjudging the Company a bankrupt or insolvent or approving as
properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under
any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law;
29
(C) appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of its property; or
(D) ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such
other decree or order unstayed and in effect for a period of 60
consecutive days;
or
(6) (A) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law to be adjudicated a bankrupt
or insolvent;
(B) the consent by the Company to the entry of a decree or order for
relief in respect of it in an involuntary case or proceeding
under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or the consent by it to the
commencement of any bankruptcy or insolvency case or proceeding
against it;
(C) the filing by the Company of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar
law, or the consent by the Company to the filing of such
petition;
(D) the consent by the Company to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or
of any substantial part of its property;
(E) the making by the Company of an assignment for the benefit of
creditors;
(F) the admission by the Company in writing of its inability to pay
its debts generally as they become due; or
(G) the taking of corporate action by the Company in furtherance of
any such action;
or
(7) any other Event of Default provided with respect to Securities of that
series.
SECTION 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in Section
5.01(5) or 5.01(6)) with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series may declare the principal amount of all the Securities of
30
that series (or, if any Securities of that series are Original Issue Discount
Securities, such portion of the principal amount of such Securities as may be
specified by the terms thereof) to be due and payable immediately, by a notice
in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. If an Event of Default specified in Section 5.01(5)
or 5.01(6) with respect to Securities of any series at the time Outstanding
occurs, the principal amount of all the Securities of that series (or, if any
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified by the terms
thereof) shall automatically, and without any declaration or other action on the
part of the Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on all Securities of that series,
(B) the principal of (and premium, if any, on) any Securities of that
series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in
such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series, other
than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
31
(1) default is made in the payment of any interest on any Security when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates (or
yield to maturity in the case of Original Issue Discount Securities) prescribed
therefor in such Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, except as a result of the Trustee's negligence or bad
faith.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
SECTION 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other
obligor upon the Securities), its property or its creditors, the Trustee shall
be entitled and empowered, by intervention in such proceeding or otherwise, to
take any and all actions authorized under the Trust Indenture Act in order to
have claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the
same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07 except as a result of its negligence
or bad faith.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official and be a member of a creditors' or
other similar committee.
32
SECTION 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel (except no such provision shall
be made respecting compensation, expenses, disbursements and advances made as a
result of Trustee's negligence), be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses of collection, reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith.
SECOND: In case the principal of the outstanding Securities of any
series in respect of which such moneys have been collected shall not have
become due, to the payment of interest on the Securities of such series, in
the order of maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the same rate or the yield to
maturity (in the case of Original Issue Discount Securities) specified on
the Securities of such series, such payments to be made ratably to the
persons entitled thereto, without discrimination or preference.
THIRD: In case the principal of the outstanding Securities of any
series in respect of which such moneys have been collected shall have
become due, by declaration, or otherwise, to the payment of the whole
amount then owing and unpaid upon the Securities of such series for
principal, premium (if any) and interest, with interest upon the overdue
principal, premium (if any) and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the same
rate or the yield to maturity (in the case of Original Issue Discount
Securities) specified on the Securities of such series; and in case such
moneys shall be insufficient to pay in full the whole amount so due and
unpaid upon the Securities of such series, then to the payment of such
principal, premium (if any) and interest, without preference or priority of
principal and premium (if any), or of any installment of interest over any
other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal
and accrued and unpaid interest.
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SECTION 5.07 Limitation on Suits.
No Holder of any Security of any series shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Securities of that
series;
(2) The Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and any premium and (subject to Section 3.07)
interest on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.06, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders 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.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 5.12 Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities
of any series shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that:
(1) such direction shall not be in conflict with any rule of law or with
this Indenture; and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any
Security of such series; or
(2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.01 Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by the
Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 6.02 Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series, the
Trustee shall give the Holders of Securities of such series notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
5.01(4) with respect to Securities of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof. For the
purpose of this Section, the term "default" means any event or events, as the
case may be, specified in Section 5.01, not including periods of grace, if any,
provided for therein.
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SECTION 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, action, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and any
resolution of the Board of Directors or Establishment Action may be
sufficiently evidenced by a Board Resolution or Establishment Action,
as the case may be;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel, and the written advice of such
counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, action, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
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(8) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(9) the Trustee is not required to take notice or deemed to have notice of
any default or Event of Default hereunder, except any Event of Default
under Section 5.01(1), (2) or (3), unless a Responsible Officer of the
Trustee has actual knowledge thereof or has received notice in writing
of such default or Event of Default from the Company or the Holders of
at least 25% in aggregate principal amount of the Outstanding
Securities, and, in the absence of any such notice, the Trustee may
conclusively assume that no such default or Event of Default exists.
SECTION 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and neither the Trustee nor any Authenticating Agent assumes any responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to 6.08 and
6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or
such other agent.
SECTION 6.06 Money Held in Trust.
Money held by the Trustee, or any Paying Agent, in trust hereunder need not
be segregated from other funds except to the extent required by law. Neither the
Trustee nor any Paying Agent shall be under any liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the
Company.
SECTION 6.07 Compensation, Reimbursement and Indemnification.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company and the Trustee for all
services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the
38
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder and the costs and expenses of enforcing this right to
indemnification.
In the event any action, suit or proceeding is brought against any Trustee
in connection with any claim for which it is entitled to indemnity hereunder, it
shall promptly (but no later than ten days following service) notify the Company
in writing, enclosing a copy of all papers served. All counsel employed to
defend any such claim shall be retained directly by the Company and may serve as
counsel to the Company and/or one or more Trustees. Absent a conflict of
interest, the Company shall not be required to pay the fees and expenses of more
than one law firm in connection with its obligations hereunder. A Trustee
entitled to indemnification may, in addition to counsel engaged by the Company,
engage counsel to represent such Trustee at its sole expense. Notwithstanding
any other provision of this Indenture, the Company shall not be liable to pay
any settlement agreed to without its written consent.
In the event the Trustee incurs expenses or renders services in any
proceedings which result from the occurrence or continuance of an Event of
Default under Section 5.01(5) or 5.01(6) hereof, or from the occurrence of any
event which, solely by virtue of the passage of time, would become such an Event
of Default, the expenses so incurred and compensation for services so rendered
are intended to constitute expenses of administration under the United States
Bankruptcy Code or equivalent law.
SECTION 6.08 Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a trustee under this Indenture with respect to
Securities of more than one series or a trustee under the indenture dated
February 26, 2002 between the Company and the Trustee respecting debt of the
Company which is subordinated in right of payment to debt issued pursuant to
this Indenture.
SECTION 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with
respect to the Securities of each series, which may be Trustee hereunder for
Securities of one or more other series. Each Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its
39
supervising or examining authority, then for the purposes of this Section and to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series, delivered to the Trustee and to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(d) If, at any time,
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and
shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case,
(A) the Company by a Board Resolution may remove the Trustee with
respect to all Securities, or
40
(B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of Securities of such series in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to
the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee
41
with respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall accept
such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and, upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to
one or more series of Securities which shall be authorized to act on behalf of
the Trustee to authenticate Securities of such series issued upon original issue
and upon exchange, registration of transfer or partial redemption thereof or
pursuant to Section 3.06, and Securities so authenticated shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent must be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
In case at the time such successor to any Authenticating Agent with respect
to any series shall succeed to such Authenticating Agent, any of the Securities
of such series shall have been authenticated but not delivered, any such
successor to such Authenticating Agent may adopt the certificate of
authentication of any predecessor Authenticating Agent and deliver such
Securities so authenticated; and in case at that time any of the Securities of
such series shall not have been authenticated, any successor to any
Authenticating Agent may authenticate such Securities either in the name of any
predecessor hereunder or in the name of successor Authenticating Agent; and in
all such cases such certificate shall have the full force which it is anywhere
in the Securities of such series or in this Indenture provided that the
certificate of the predecessor Authenticating
43
Agent shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Authenticating Agent or to authenticate
Securities in the name of any predecessor Authenticating Agent shall apply only
to its successor or successors by merger, conversion or consolidation.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which must be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth; it will keep and maintain
and furnish to the Trustee from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section 6.14 and will notify the Trustee promptly if it shall
cease to be so qualified; and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will defend any claim asserted
against the Trustee by reason of acts or failures to act of the Authenticating
Agent but it shall have no liability for any action taken by it at the specific
written direction of the Trustee.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.07.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK,
As Trustee
By
-------------------------------------
As Authenticating Agent
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By
-------------------------------------
Authorized Officer
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not later than June 30 and December 31 in each year, a
list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of each series as of a date
no more than 15 days prior to the date such list is furnished; and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to
the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.02 Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.01 and the names and
addresses of Holders received by the Trustee, or its designee, in its capacity
as Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
SECTION 7.03 Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
45
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than sixty days after each May 15
following the date of first issuance.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. (The Company
will notify the Trustee when any Securities are listed on any stock exchange
pursuant to Section 7.04.)
SECTION 7.04 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit to
Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times and
in the manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the Commission.
The Company shall notify the Trustee when any Securities are listed on any
stock exchange.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company covenants that it will not merge or consolidate with any other
corporation or sell or convey all or substantially all of its assets to any
person, firm or corporation, except that the Company may merge or consolidate
with, or sell or convey all or substantially all of its assets to, any other
corporation, provided that:
(1) (A) the Company shall be the continuing corporation or:
(B) (i) the successor corporation (if other than the Company) shall
be a corporation organized and existing under the laws of
the United States of America or a state thereof; and
(ii) such corporation shall expressly assume the due and punctual
payment of the principal of and any premium and interest on
all the Securities, according to their tenor, and the due
and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed
by the Company;
and
(2) the Company or such successor corporation, as the case may be, shall
not, immediately after such merger or consolidation, or such sale or
conveyance, be in default in the performance of any such covenant or
condition and no event which
46
with the lapse of time, the giving of notice or both would constitute
an Event of Default shall have occurred and be continuing.
For purposes of this Section 8.01, "substantially all of its assets" shall mean,
at any date, a portion of the non-current assets reflected in the Company's
consolidated balance sheet as of the end of the most recent quarterly period
that represents at least sixty-six and two-thirds percent (662/3%) of the total
reported value of such assets.
SECTION 8.02 Successor Substituted.
In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation of the obligations under this Indenture
and the Securities in accordance with Section 8.01, such successor corporation
shall succeed to and be substituted for the Company, with the same effect as if
it had been named herein as a party hereto, and the Company shall thereupon be
relieved of any further obligations or liabilities hereunder and upon the
Securities and the Company as the predecessor corporation may thereupon or at
any time thereafter be dissolved, wound-up or liquidated. Such successor
corporation thereupon may cause to be signed, and may issue either in its own
name or in the name of the predecessor corporation, any or all of the Securities
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee and, upon the order of such successor corporation,
instead of the Company, and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver
any Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof.
In case of any such consolidation, merger, sale or conveyance, such changes
in phraseology and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
SECTION 8.03 Trustee Entitled to Opinion.
The Trustee, subject to the provisions of Sections 6.01 and 6.03, may
receive an Opinion of Counsel as conclusive evidence that any such
consolidation, merger, sale or conveyance, and any such assumption, complies
with the provisions of this Article.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by its
Board of Directors, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for one or more of the following purposes:
47
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of
such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default for the benefit of the Holders
of all or any series of Securities (and if such additional Events of
Default are to be for the benefit of less than all series of
Securities, stating that such additional Events of Default are
expressly being included solely for the benefit of such series); or
(4) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(5) to add to, change or eliminate any of the provisions of this Indenture
in respect of one or more series of Securities, provided that any such
addition, change or elimination
(A) shall neither
(i) apply to any Security of any series created prior to the
execution of such supplemental indenture and entitled to the
benefit of such provision nor
(ii) modify the rights of the Holder of any such Security with
respect to such provision
or
(B) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities pursuant to the requirements of Section 10.05
or to otherwise secure the Securities of any series; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 2.01 and 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture
as shall be necessary to
48
provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, pursuant to the requirements of Section
6.11; or
(9) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the interests
of the Holders of Securities of any series in any material respect.
SECTION 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by its Board of Directors, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable
upon the redemption thereof, or reduce the amount of the principal of
an Original Issue Discount Security or any other Security which would
be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change the coin or currency in
which any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or adversely affect any
right of the Holder of any Security to require the Company to
repurchase such Security;
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(3) modify any of the provisions of this Section, Section 5.13 or Section
10.07, except to increase any percentage set forth in such Sections or
to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; provided, however, that this
clause shall not be deemed to require the consent of any Holder with
respect to changes in the references to "the Trustee" and concomitant
changes in this Section and Section 10.07, or the deletion of this
proviso, in accordance with the requirements of Sections 6.11 and
9.01(8).
49
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05 Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
50
ARTICLE X
COVENANTS
SECTION 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of (including any amount in respect of original issue discount) and
any premium and interest on each of the Securities of such series at the Place
of Payment, at the respective times and in the manner provided in the Securities
and this Indenture. The principal of, premium, and interest on the Securities
shall be payable only in accordance with the terms of the relevant Security.
SECTION 10.02 Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of New
York, and in each other Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, or an affiliate of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, and in each other Place of
Payment for Securities of any series for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency.
SECTION 10.03 Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, prior to each due date of the principal of or any premium
or interest on any Securities of that series, deposit with a Paying Agent a sum
sufficient to pay such amount, such
51
sum to be held as provided by the Trust Indenture Act, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent, other than the Trustee or the
Company, for any series of Securities to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will (1) comply with the
provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2)
during the continuance of any default by the Company (or any other obligor upon
the Securities of that series) in the making of any payment in respect of the
Securities of that series, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series. Each of the Company and the Trustee,
having agreed to the foregoing on its behalf as a Paying Agent by its execution
and delivery of this instrument, has hereby satisfied the provisions of this
paragraph with respect to itself as a Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in New York, New York,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company
free of the trust formerly impressed upon it.
SECTION 10.04 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
52
SECTION 10.05 Mortgage of Certain Property.
If the Company or any Subsidiary of the Company shall Mortgage as security
for any indebtedness for money borrowed any property capable of producing oil or
gas which (i) is located in the United States and (ii) is determined to be a
principal property by the Board of Directors in its discretion, the Company will
secure or will cause such Subsidiary to secure each series of the Securities
equally and ratably with all indebtedness or obligations secured by the Mortgage
then being given and with any other indebtedness of the Company or such
Subsidiary then entitled thereto; provided, however, that this covenant shall
not apply in the case of:
(1) any Mortgage existing on the date of this Indenture (whether or not
such Mortgage includes an after-acquired property provision);
(2) any Mortgage, including a purchase money Mortgage, incurred in
connection with the acquisition of any property (for purposes hereof,
the creation of any Mortgage within one hundred eighty (180) days
after the acquisition or completion of construction of such property
shall be deemed to be incurred in connection with the acquisition of
such property), the assumption of any Mortgage previously existing on
such acquired property or any Mortgage existing on the property of any
corporation when such corporation becomes a Subsidiary of the Company;
(3) any Mortgage on such property in favor of the United States of
America, any State, or any agency, department, political subdivision
or other instrumentality of either, to secure partial, progress,
advance or other payments to the Company or any Subsidiary of the
Company pursuant to the provisions of any contract or any statute;
(4) any Mortgage on such property in favor of the United States of
America, any State, or any agency, department, political subdivision
or other instrumentality of either, to secure borrowings by the
Company or any Subsidiary of the Company for the purchase or
construction of the property Mortgaged;
(5) any Mortgage in connection with a sale or other transfer of:
(A) oil, gas or other minerals in place for a period of time until,
or in an amount such that, the purchaser will realize therefrom a
specified amount of money (however determined) or a specified
amount of minerals; or
(B) any interest in property of the character commonly referred to as
an "oil payment" or "production payment";
(6) any Mortgage on any property arising in connection with or to secure
all or any part of the cost of the repair, construction, improvement,
alteration, exploration, development or drilling of such property or
any portion thereof;
(7) any Mortgage on any pipeline, gathering system, pumping or compressor
station, pipeline storage facility, other pipeline facility, drilling
equipment, drilling platform, drilling barge, any movable railway,
marine or automotive equipment,
53
gas plant, office building, storage tank, or warehouse facility, any
of which is located at or on any such principal property;
(8) any Mortgage on any equipment or other personal property used in
connection with any such principal property;
(9) any Mortgage on any such principal property arising in connection with
the sale of accounts receivable resulting from the sale of oil or gas
at the wellhead; or
(10) any renewal of or substitution for any Mortgage permitted under any of
the preceding clauses.
Notwithstanding the foregoing restriction contained in this Section 10.05,
the Company may and may permit its Subsidiaries to incur liens or grant
Mortgages on property covered by the restriction above so long as the net book
value of the property so encumbered, together with all property subject to the
restriction on sale and leasebacks contained in Section 10.06, does not, at the
time such lien or Mortgage is granted, exceed ten percent (10%) of Consolidated
Net Tangible Assets.
SECTION 10.06 Sale and Leaseback of Certain Properties.
The Company will not, nor will it permit any Subsidiary of the Company to,
sell or transfer any property capable of producing oil or gas which (i) is
located in the United States and (ii) is determined to be a principal property
by the Board of Directors in its discretion, with the intention of taking back a
lease of such property; provided, however, this covenant shall not apply if:
(1) the lease is between the Company and a Subsidiary or between
Subsidiaries;
(2) the lease is for a temporary period by the end of which it is intended
that the use of such property by the lessee will be discontinued;
(3) the Company or a Subsidiary of the Company could, in accordance with
Section 10.05, Mortgage such property without equally and ratably
securing the Securities;
(4) the transfer is incident to or necessary to effect any operating,
farm-out, farm-in, unitization, acreage exchange, acreage
contribution, bottom-hole or dry-hole arrangement or pooling agreement
or any other agreement of the same general nature relating to the
acquisition, exploration, maintenance, development or operation of oil
or gas properties in the ordinary course of business or as required by
any regulatory agency having jurisdiction over the property; or
(5) (A) the Company promptly informs the Trustee of such sale,
(B) the net proceeds of such sale are at least equal to the fair
value (as determined by resolution adopted by the Board of
Directors) of such property and
54
(C) the Company shall, and in any such case the Company covenants
that it will, within one hundred and eighty (180) days after such
sale, apply an amount equal to the net proceeds of such sale to
the retirement of debt of the Company, or of a Subsidiary of the
Company in the case of property of such Subsidiary, maturing by
its terms more than one (1) year after the date on which it was
originally incurred (herein called "funded debt"); provided that
the amount to be applied to the retirement of funded debt of the
Company or of a Subsidiary of the Company shall be reduced by the
amount below if, within seventy-five (75) days after such sale,
the Company shall deliver to the Trustee an Officers' Certificate
(i) stating that on a specified date after such sale the
Company or a Subsidiary of the Company, as the case may be,
voluntarily retired a specified principal amount of funded
debt,
(ii) stating that such retirement was not effected by payment at
maturity or pursuant to any applicable mandatory sinking
fund or prepayment provision (other than provisions
requiring retirement of any funded debt of the Company or a
Subsidiary of the Company, as the case may be, under the
circumstances referred to in this Section 10.06), and
(iii) stating the then optional redemption or prepayment price
applicable to the funded debt so retired or, if there is no
such price applicable, the amount applied by the Company or
a Subsidiary of the Company, as the case may be, to the
retirement of such funded debt.
In the event of such a sale or transfer, the Company shall deliver to the
Trustee a certified copy of the resolution of the Board of Directors referred to
in the parenthetical phrase contained in subclause (5)(B) of this Section 10.06
and an Officers' Certificate setting forth all material facts under this Section
10.06. For the purposes of this Section 10.06 the term retirement of such funded
debt shall include the "in substance defeasance" of such funded debt in
accordance with then applicable accounting rules.
SECTION 10.07 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of such series, the Company may, with respect to the Securities of
any series, omit in any particular instance to comply with any term, provision
or condition set forth in any covenant provided pursuant to Section 3.01(18),
9.01(2) or 9.01(7) for the benefit of the Holders of such series or in Section
10.05 or 10.06, if before the time for such compliance the Holders of at least a
majority in principal amount of the Outstanding Securities of such series shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to the
extent so expressly waived, and, until such waiver shall become effective,
55
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01 Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for such Securities) in accordance
with this Article.
SECTION 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution or in another manner specified as contemplated by Section
3.01 for such Securities. In case of any redemption at the election of the
Company of less than all the Securities of any series (including any such
redemption affecting only a single Security), the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
SECTION 11.03 Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed (unless
all the Securities of such series and of a specified tenor are to be redeemed or
unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series, provided that
the unredeemed portion of the principal amount of any Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination or any integral multiple thereof) for such Security. If less than
all the Securities of such series and of a specified tenor are to be redeemed
(unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities of such series
and specified tenor not previously called for redemption in accordance with the
preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption as aforesaid and, in case of any Securities selected for
partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with respect
to any redemption affecting only a single Security, whether such Security is to
be redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Securities to be redeemed, at his address appearing in the
Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting
of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the
principal amounts) of the particular Securities to be redeemed and, if
less than all the Outstanding Securities of any series consisting of a
single Security are to be redeemed, the principal amount of the
particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and
payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where each such Security is to be surrendered for
payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company
shall be given by the Company or, at the Company's request, by the Trustee in
the name and at the expense of the Company and shall be irrevocable.
SECTION 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) an amount of money
sufficient to pay the Redemption Price of, and
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(except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 3.01, installments of interest whose Stated Maturity is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal and any premium shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
SECTION 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 12.01 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for
the retirement of Securities of any series except as otherwise specified as
contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of
any Securities is herein referred to as a "mandatory sinking fund payment," and
any payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 12.02. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
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SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities.
The Company
(1) may deliver Outstanding Securities of a series (other than any
Securities previously called for redemption) and
(2) may apply as a credit Securities of a series which have been redeemed
either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking
fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking fund payment with
respect to any Securities of such series required to be made pursuant to the
terms of such Securities as and to the extent provided for by the terms of such
Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and
credited for such purpose by the Trustee at the Redemption Price, as specified
in the Securities so to be redeemed, for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
SECTION 12.03 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for such
Securities pursuant to the terms of such Securities, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if
any, which is to be satisfied by delivering and crediting Securities pursuant to
Section 12.02 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 15 nor more than 45 days prior to each such sinking
fund payment date, the Trustee shall select the Securities to be redeemed upon
such sinking fund payment date in the manner specified in Section 11.03 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or
Section 13.03 applied to any Securities or any series of Securities, as the case
may be, designated pursuant to Section 3.01 as being defeasible pursuant to such
Section 13.02 or 13.03, in accordance with any applicable requirements provided
pursuant to Section 3.01 and upon compliance with the conditions set forth below
in this Article. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 3.01 for such Securities.
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SECTION 13.02 Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be, the
Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date the
conditions set forth in Section 13.04 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee, at
the expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder:
(1) the rights of Holders of such Securities to receive, solely from the
trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the principal of and any premium
and interest on such Securities when payments are due,
(2) the Company's obligations with respect to such Securities under
Sections 3.04, 3.05, 3.06, 10.02 and 10.03,
(3) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and
(4) this Article.
Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section applied to any Securities notwithstanding
the prior exercise of its option (if any) to have Section 13.03 applied to such
Securities.
SECTION 13.03 Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section
8.01(1)(B)(i), Section 10.05, Section 10.06 and any covenants provided
pursuant to Section 3.01(18), 9.01(2) or 9.01(7) for the benefit of
the Holders of such Securities, and
(2) the occurrence of any event specified in Sections 5.01(3), 5.01(4)
(with respect to any of Section 8.01(1)(B)(i), Section 10.05, Section
10.06 and any such covenants provided pursuant to Section 3.01(18),
9.01(2) or 9.01(7)) and 5.01(7) shall be deemed not to be or result in
an Event of Default,
in each case with respect to such Securities as provided in this Section on and
after the date the conditions set forth in Section 13.04 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition
60
or limitation set forth in any such specified Section (to the extent so
specified in the case of Section 5.01(4)), whether directly or indirectly by
reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other
document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02
or Section 13.03 to any Securities or any series of Securities, as the case may
be:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.09 and agrees to comply with the provisions
of this Article applicable to it) as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefits of the Holders of
such Securities,
(A) money in an amount (in such currency, currencies or currency unit
or units in which the Securities of such series are payable), or
(B) in the case of Securities denominated in Dollars, U.S. Government
Obligations, or, in the case of Securities denominated in a
Foreign Currency, Foreign Government Obligations, which through
the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later
than one day before the due date of any payment, money in an
amount, or
(C) a combination thereof,
in each case sufficient, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge,
and which shall be applied by the Trustee (or any such other
qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means:
(x) any security which is
(i) a direct obligation of the United States of America for the
payment of which the full faith and credit of the United
States of America is pledged or
(ii) an obligation of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States
of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the
United States of America,
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which, in either case (i) or (ii), is not callable or
redeemable at the option of the issuer thereof; and
(y) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) as custodian with
respect to any U.S. Government Obligation which is specified
in clause (x) above and held by such bank for the account of
the holder of such depositary receipt, or with respect to
any specific payment of principal of or interest on any U.S.
Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable
to the holder of such depositary receipt from any amount
received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest
evidenced by such depositary receipt.
(2) In the event of an election to have Section 13.02 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel
stating that
(A) the Company has received from, or there has been published by,
the Internal Revenue Service a ruling, or
(B) since the date of this instrument, there has been a change in the
applicable Federal income tax law,
in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of
the deposit, Defeasance and discharge to be effected with respect to
such Securities and will be subject to Federal income tax on the same
amount, in the same manner and at the same times as would be the case
if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any
Securities or any series of Securities, as the case may be, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Securities will not recognize gain
or loss for Federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and
will be subject to Federal income tax on the same amount, in the same
manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any
other Securities shall have occurred and be continuing at the time of
such deposit or, with regard to any such event specified in Sections
5.01(5) and (6), at any time on or prior to the 90th day after the
date of such deposit (it being understood that this condition shall
not be deemed satisfied until after such 90th day).
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(5) Such Defeasance or Covenant Defeasance shall not cause the Trustee to
have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or
violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust
arising from such deposit constituting an investment company within
the meaning of the Investment Company Act of 1940 (and any statute
successor thereto) unless such trust shall be registered under such
Act or exempt from registration thereunder.
(8) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all
conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
SECTION 13.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all
money, U.S. Government Obligations (including the proceeds thereof) and Foreign
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 13.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations and
Foreign Government Obligations deposited pursuant to Section 13.04 or the
principal and interest received in respect thereof, other than any such tax, fee
or other charge which by law is for the account of the Holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall
deliver or pay to the Company from time to time upon Company Request any money,
U.S. Government Obligations or Foreign Government Obligations held by it as
provided in Section 13.04 with respect to any Securities which, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect the
Defeasance or Covenant Defeasance, as the case may be, with respect to such
Securities.
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SECTION 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the obligations under this
Indenture and such Securities from which the Company has been discharged or
released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as
though no deposit had occurred pursuant to this Article with respect to such
Securities, until such time as the Trustee or Paying Agent is permitted to apply
all money held in trust pursuant to Section 13.05 with respect to such
Securities in accordance with this Article; provided, however, that if the
Company makes any payment of principal of or any premium or interest on any such
Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive
such payment from the money so held in trust.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
MARATHON OIL CORPORATION
By:
-------------------------------------
John T. Mills
Chief Financial Officer
JPMORGAN CHASE BANK
By:
-------------------------------------
John G. Jones
Vice President and Trust Officer
65
STATE OF TEXAS )
)
COUNTY OF HARRIS )
On the 26th day of February, 2002, before me personally came John T.
Mills, to me known, who, being by me duly sworn, did depose and say that he is
Chief Financial Officer of Marathon Oil Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
STATE OF TEXAS )
)
COUNTY OF HARRIS )
On the 26th day of February, 2002, before me personally came John G. Jones,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President and Trust Officer of JPMorgan Chase Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
-----------------------------------------
Notary Public
[NOTARIAL SEAL]
66