-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GtLmxod20IE+7hULbWGdFdL5X+Peql8I6J3xocx6O8XepurACGX+LIuU2c8qkj3t EF8aXNzcLgdL49ergfP/4w== 0000950129-02-003160.txt : 20020621 0000950129-02-003160.hdr.sgml : 20020621 20020621121613 ACCESSION NUMBER: 0000950129-02-003160 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 8 CONFORMED PERIOD OF REPORT: 20020618 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20020621 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MARATHON OIL CORP CENTRAL INDEX KEY: 0000101778 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 250996816 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-05153 FILM NUMBER: 02684052 BUSINESS ADDRESS: STREET 1: P O BOX 3128 CITY: HOUSTON STATE: TX ZIP: 77253-3128 BUSINESS PHONE: 7136296600 FORMER COMPANY: FORMER CONFORMED NAME: USX CORP DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: UNITED STATES STEEL CORP/DE DATE OF NAME CHANGE: 19860714 8-K 1 h97862e8vk.txt MARATHON OIL CORPORATION - DATED JUNE 18, 2002 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): JUNE 18, 2002 MARATHON OIL CORPORATION (Exact name of registrant as specified in its charter) DELAWARE 1-5153 25-0996816 (State or other jurisdiction (Commission File Number) (IRS Employer of incorporation) Identification No.) 5555 SAN FELIPE ROAD, HOUSTON, TEXAS 77056-2723 (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (713) 629-6600 ---------- 1 ITEM 5. OTHER EVENTS. On June 18, 2002, Marathon Global Funding Corporation ("Marathon Funding") and Marathon Oil Corporation ("Marathon") entered into an underwriting agreement for the public offering of $400,000,000 aggregate principal amount of Marathon Funding's 6% Notes due 2012 (the "Notes"), fully and unconditionally guaranteed by Marathon. The Notes are to be issued under an Indenture dated June 14, 2002 (the "Indenture") among Marathon Funding, Marathon and JPMorgan Chase Bank, as Trustee. Closing of the issuance and sale of the Notes is scheduled for June 21, 2002. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 1.1 Underwriting Agreement dated June 18, 2002 among Marathon Funding, Marathon and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters. 1.2 Pricing Agreement dated June 18, 2002 among Marathon Funding, Marathon and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters. 4.1 Indenture dated June 14, 2002 among Marathon Funding, Marathon and JPMorgan Chase Bank, as Trustee. 4.2 Officers' Certificate delivered pursuant to Sections 1.02, 2.01, 3.01 and 3.03 of the Indenture dated as of June 21, 2002, providing for the issuance of Marathon Funding's 6% Notes due 2012, fully and unconditionally guaranteed by Marathon. 4.3 Form of Notes (included in Exhibit 4.2 above). 5.1 Opinion of Stewart McKelvey Stirling Scales. 5.2 Opinion of Baker Botts L.L.P. 8.1 Opinion of Macleod Dixon LLP as to certain tax matters. 23.1 Consent of Macleod Dixon LLP (included in Exhibit 8.1). 2 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. MARATHON OIL CORPORATION Date: June 21, 2002 By: /s/ A.G. ADKINS ------------------------------------ Name: A.G. Adkins Title: Vice President - Accounting and Controller EXHIBIT INDEX
NUMBER EXHIBIT - ------ ----------- 1.1 Underwriting Agreement dated June 18, 2002 among Marathon Funding, Marathon and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters. 1.2 Pricing Agreement dated June 18, 2002 among Marathon Funding, Marathon and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several Underwriters. 4.1 Indenture dated June 14, 2002 among Marathon Funding, Marathon and JPMorgan Chase Bank, as Trustee. 4.2 Officers' Certificate delivered pursuant to Sections 1.02, 2.01, 3.01 and 3.03 of the Indenture dated as of June 21, 2002, providing for the issuance of Marathon Funding's 6% Notes due 2012, fully and unconditionally guaranteed by Marathon. 4.3 Form of Notes (included in Exhibit 4.2 above). 5.1 Opinion of Stewart McKelvey Stirling Scales. 5.2 Opinion of Baker Botts L.L.P. 8.1 Opinion of Macleod Dixon LLP as to certain tax matters. 23.1 Consent of Macleod Dixon LLP (included in Exhibit 8.1).
EX-1.1 3 h97862exv1w1.txt UNDERWRITING AGREEMENT DATED 6/18/02 EXHIBIT 1.1 EXECUTION VERSION MARATHON GLOBAL FUNDING CORPORATION DEBT SECURITIES (FULLY AND UNCONDITIONALLY GUARANTEED BY MARATHON OIL CORPORATION) UNDERWRITING AGREEMENT New York, New York June 18, 2002 Banc of America Securities LLC J.P. Morgan Securities Inc. As Representatives of the several Underwriters, c/o Banc of America Securities LLC 100 North Tryon Street Charlotte, NC 28255 c/o J.P. Morgan Securities Inc. 270 Park Avenue New York, NY 10017 Ladies and Gentlemen: Marathon Global Funding Corporation, a Nova Scotia unlimited liability company (the "Company"), and Marathon Oil Corporation, a Delaware corporation (the "Guarantor"), propose to enter into one or more Pricing Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement and the securities specified therein) certain of its debt securities, fully and unconditionally guaranteed (the "Guarantees") by the Guarantor (such debt securities, including the Guarantees, are referred to as the "Securities") specified in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the "Designated Securities"). The terms and rights of any particular issuance of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture (the "Indenture") identified in Schedule II to such Pricing Agreement. 1. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as 2 representatives (the "Representatives"). The term "Representatives" also refers to a single firm acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an obligation of the Company or the Guarantor to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company and the Guarantor to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriter and the principal amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Pricing Agreement shall also specify (to the extent not set forth in the Indenture and the registration statement and prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designed to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. 2. The Company and the Guarantor, as the case may be, represents and warrants to, and agrees with, each of the Underwriters that: (a) A registration statement on Form S-3 (#333-90034 and #333-90034-01) with respect to the Securities has been filed with the Securities and Exchange Commission (the "Commission"); such registration statement and any post-effective amendment thereto, each in the form heretofore delivered or to be delivered to the Representatives, have been declared effective by the Commission in such form; no other document with respect to such registration statement and no other document required to be incorporated by reference therein has heretofore been filed or transmitted for filing with the Commission (other than documents filed prior to the date hereof and documents permitted to be filed pursuant to Section 5(a) hereof); and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the Securities Act of 1933, as amended (the "Act"), being hereinafter called a "Preliminary Prospectus"); the various parts of such registration statement, including all exhibits thereto and the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective but excluding Form T-1, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; if it is contemplated, at the time the Pricing Agreement is executed, that a registration statement or a post-effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d) under the Act, the term "Registration Statement" as used in this Agreement includes such registration statement; the prospectus relating to the Securities, in the form in which it has most recently been filed, or transmitted for filing, with the Commission on or prior to the date of this 3 Agreement, being hereinafter called the "Prospectus"; any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement; and any reference to the Prospectus as amended or supplemented shall be deemed to refer to the Prospectus as amended or supplemented in relation to the applicable Designated Securities in the form in which it is first used to confirm sales of the Designated Securities and filed with the Commission pursuant to Rule 424(b) under the Act in accordance with Section 5(a) hereof (such Prospectus also called, the "Final Prospectus"), including any documents incorporated by reference therein as of the date of such filing); (b) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the applicable requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Final Prospectus relating to such Securities; (c) The Registration Statement and the Prospectus conform, and any further amendments or supplements to the Registration Statement or the Prospectus will conform, in all material respects to the applicable requirements of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the applicable rules and regulations of the Commission thereunder and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Final Prospectus, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall not apply to any statements or 4 omissions made in reliance upon and in conformity with information furnished in writing to the Company by an Underwriter of Designated Securities through the Representatives expressly for use in the Final Prospectus relating to such Securities; (d) Neither the Guarantor nor any of its subsidiaries has sustained since the date of the latest audited financial statements included or incorporated by reference in the Final Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth in or contemplated by the Final Prospectus; and, since the respective dates as of which information is given in the Registration Statement and the Final Prospectus, there has not been any material change in the capital stock or long-term debt of the Guarantor or any of its subsidiaries or any material adverse change, or any development likely to result in a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole, otherwise than as set forth in or contemplated by the Final Prospectus; (e) The Company is an unlimited liability company duly organized, validly existing and in good standing under the laws of Nova Scotia, Canada, has the corporate power and authority to own its property and to conduct its business as described in the Final Prospectus; and the Guarantor is a corporation duly organized and validly existing in good standing under the laws of the State of Delaware with full corporate power and authority to own, lease and operate its properties and to conduct business as described in the Registration Statement and the Final Prospectus; (f) The Guarantor has an authorized capitalization as set forth in the Final Prospectus, and all of the issued shares of capital stock of the Company and the Guarantor have been duly and validly authorized and issued and are fully paid and non-assessable; (g) The Securities, including the Guarantees, have been duly authorized by the Company and the Guarantor, and, when Designated Securities are issued and delivered pursuant to this Agreement and the Pricing Agreement with respect to such Designated Securities, such Designated Securities will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Company and the Guarantor entitled to the benefits provided by the Indenture, which will be substantially in the form filed as an exhibit to the Registration Statement; the Indenture has been duly authorized, executed and delivered by the Company and the Guarantor and is duly qualified under the Trust Indenture Act and, at the Time of Delivery (as defined in Section 4 hereof) for such Designated Securities, the Indenture will constitute a valid and legally binding instrument, enforceable in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or transfer and other laws of general applicability relating to or affecting creditors' rights and to general equity principles (regardless of whether such enforceability is considered in a proceeding in equity or at law); and the Indenture and the Designated Securities will conform to the descriptions thereof contained in the Final Prospectus with respect to such Designated Securities; 5 (h) The issue and sale of the Securities and the compliance by the Company and the Guarantor with all of the provisions of the Securities, the Indenture, this Agreement and any Pricing Agreement, and the consummation of the transactions herein and therein contemplated (i) will not result in any violation of the provisions of the Restated Certificate of Incorporation or By-laws of the Guarantor or the Memorandum of Association and Articles of Association of the Company, (ii) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or the Guarantor is a party or by which the Company or the Guarantor is bound or to which any of the property or assets of the Company or the Guarantor is subject, except for such conflicts, breaches, violations or defaults which would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole and (iii) will not result in any violation of the provisions of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or the Guarantor or any of its properties, except for such violations which would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Designated Securities or the consummation by the Company or the Guarantor of the transactions contemplated by this Agreement or any Pricing Agreement or the Indenture, except such as have been, or will have been prior to the Time of Delivery, obtained under the Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters; and (i) Other than as set forth in the Final Prospectus, there are no legal or governmental proceedings pending to which the Guarantor, the Company, or any of their subsidiaries is a party or of which any property of the Guarantor, the Company, or any of their subsidiaries is the subject which, if determined adversely to the Guarantor, the Company, or any of their subsidiaries, would have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole; and, to the best of the Company's knowledge, no such proceedings are threatened by governmental authorities or by others. 3. Upon the execution of the Pricing Agreement applicable to any Designated Securities and authorization by the Representatives of the release of such Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Final Prospectus. 4. Designated Securities to be purchased by each Underwriter pursuant to the Pricing Agreement relating thereto, in definitive form to the extent practicable, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours prior notice to the Company, shall be delivered by or on behalf of the Company and the Guarantor to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by electronic funds 6 transfer in the funds specified in such Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the "Time of Delivery" for such Securities. 5. The Company and the Guarantor agree with each of the Underwriters of any Designated Securities: (a) To prepare the Final Prospectus in relation to the applicable Designated Securities in a form approved by the Representatives and to file such Final Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's close of business on the second business day following the execution and delivery of the Pricing Agreement relating to the applicable Designated Securities or, if applicable, such earlier time as may be required by Rule 424(b); to make no further amendment or any supplement to the Registration Statement or Final Prospectus after the date of the Pricing Agreement relating to such Designated Securities and prior to the Time of Delivery for such Designated Securities to which the Representatives for such Designated Securities shall reasonably object promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and to furnish the Representatives with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Designated Securities, of the suspension of the qualification of such Designated Securities for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus or for additional information; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal; (b) Promptly from time to time to take such action as the Representatives may reasonably request to qualify such Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of such Designated Securities, provided that in connection therewith neither the Company nor the Guarantor shall be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or to subject itself to taxation in any jurisdiction; (c) To furnish the Underwriters with copies of the Final Prospectus in such quantities as the Representatives may from time to time reasonably request, and, if the 7 delivery of a prospectus is required at any time in connection with the offering or sale of the Designated Securities and if at such time any event shall have occurred as a result of which the Final Prospectus would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Final Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Final Prospectus or to file under the Exchange Act any document incorporated by reference in the Final Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representatives and to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Final Prospectus or a supplement to the Final Prospectus which will correct such statement or omission or effect such compliance; (d) To make generally available to its security holders as soon as practicable, but in any event not later than eighteen months after the effective date of the Registration Statement (as defined in Rule 158 (c)), an earnings statement of the Guarantor and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including at the option of the Guarantor Rule 158); and (e) Except for debt securities which the Company and the Guarantor have advised the Representatives in writing prior to the date of the Pricing Agreement for such Designated Securities, during the period beginning from the date of the Pricing Agreement for such Designated Securities and continuing to the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company or the Guarantor which mature more than one year after such Time of Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives. 6. Each of the Company and the Guarantor covenants and agrees with the several Underwriters that the Company or the Guarantor will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's and Guarantor's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Final Prospectus and amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Securities; (iii) all expenses in connection with the qualification of the Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (iv) any fees charged by securities rating services for rating the Securities; (v) any filing fees incident to any required review by the National Association of Securities Dealers, Inc. of the terms of the sale of the Securities; (vi) the cost of preparing the Securities; (vii) the fees and expenses of any Trustee and any agent of any 8 Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Securities; and (viii) all other costs and expenses incident to the performance of their obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as otherwise agreed by the Company, the Guarantor and the Underwriters and except as provided in this Section, Section 8 and Section 11 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters of any Designated Securities under the Pricing Agreement relating to such Designated Securities shall be subject, in the discretion of the Representatives, to the condition that all representations and warranties and other statements of the Company and the Guarantor in or incorporated by reference in the Pricing Agreement relating to such Designated Securities are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that each of the Company and the Guarantor shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Final Prospectus in relation to the applicable Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives' reasonable satisfaction; (b) Counsel for the Underwriters shall have furnished to the Representatives such opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the incorporation of the Company and the Guarantor, the validity of the Indenture, the Designated Securities, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) The Company shall have requested and caused counsel for the Company and the Guarantor to furnish to the Representatives written opinions, dated the Time of Delivery for such Designated Securities, in substantially the form attached hereto as Annex IV and Annex V, which opinions must be in form and substance reasonably satisfactory to the Representatives. (d) At the date and time of execution (the "Execution Time") of the Pricing Agreement and at the Time of Delivery for such Designated Securities, the independent accountants of the Guarantor who have certified the financial statements of the Guarantor and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representatives a letter, dated such date, to the effect set forth in Annex II hereto, and with respect to such letter dated the date of the Time of Delivery, as to such 9 other matters as the Representatives may reasonably request and in form and substance reasonably satisfactory to the Representatives; (e) On or after the date and time that the Pricing Agreement relating to the Designated Securities is executed by the parties thereto, there shall not have been any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole, except as set forth in or contemplated in the Final Prospectus the effect of which is, in the judgment of the Representatives, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Designated Securities. (f) On or after the date and time that the Pricing Agreement relating to the Designated Securities is executed by the parties thereto (i) no downgrading shall have occurred in the rating accorded the Guarantor's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of the Guarantor's securities or securities guaranteed by the Guarantor, including any of the Company's debt securities; (g) On or after the date and time that the Pricing Agreement relating to the Designated Securities is executed by the parties thereto there shall not have occurred any of the following: (i) trading in the Guarantor's Common Stock shall have been suspended by the Commission or The New York Stock Exchange or there shall have been a suspension or material limitation of trading in securities generally on The New York Stock Exchange or minimum prices shall have been established on such exchange; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities or a material disruption of securities settlement or clearance services; or (iii) any outbreak or escalation of major hostilities in which the United States is involved, any declaration of war by Congress or any similar substantial national or international calamity or emergency, if the effect of any such event specified in this clause in the judgment of the Representatives makes it impractical or inadvisable to proceed with the public offering or the delivery of the Designated Securities; (h) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of officers of the Company and the Guarantor reasonably satisfactory to the Representatives as to the accuracy of the representations and warranties of the Company and the Guarantor herein at and as of such Time of Delivery, as to the performance by the Company and the Guarantor of all of their obligations hereunder to be performed at or prior to such Time of Delivery, as to the matters set forth in subsections (a) and (e) of this Section and as to such other matters as the Representatives may reasonably request; (i) The Representatives shall have received on the Closing Date an opinion of Stewart McKelvey Stirling Scales, special Canadian counsel to the Company, in substantially the form of Annex III; and 10 (j) The Representatives shall have received on the Closing Date a Canadian tax opinion of Macleod Dixon LLP, special Canadian counsel to the Company, in substantially the form of Annex VII. If any of the conditions specified in this Section 7 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and counsel for the Underwriters, the applicable Pricing Agreement and all obligations of the Underwriters thereunder may be canceled at, or at any time prior to, the Time of Delivery by the Representatives. Notice of such cancelation shall be given to the Company and the Guarantor in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered at the time and place specified in the Pricing Agreement relating to the Designated Securities. 8. (a) The Company and the Guarantor will indemnify and hold harmless each Underwriter and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities, joint or several, to which such Underwriter may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, the Final Prospectus, or any amendment or supplement thereto, or any related preliminary prospectus or preliminary prospectus supplement, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with investigating or defending any such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that neither the Company nor the Guarantor will be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon an untrue statement or alleged untrue statement in or omission or alleged omission from any such document in reliance upon and in conformity with written information furnished to the Company and the Guarantor by any Underwriter through the Representatives, if any, specifically for use therein; provided, further, that the foregoing indemnification, to the extent it relates to any actual or alleged untrue statement or omission made in or from any Preliminary Prospectus but eliminated or remedied in the Final Prospectus, shall not inure to the benefit of any Underwriter from whom the person asserting such untrue statement or omission purchased offered Securities if a copy of the Final Prospectus (excluding documents incorporated therein by reference) was not sent or given to such person at or prior to the written confirmation of the sale of such offered Securities to such person if the Company or the Guarantor has previously furnished copies thereof to such Underwriter. (b) Each Underwriter will, severally and not jointly, indemnify and hold harmless the Company and the Guarantor and each of their directors, officers and each person, if any, who controls the Company or the Guarantor within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages 11 or liabilities to which the Company or the Guarantor may become subject, under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Final Prospectus and any other prospectus relating to the Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Final Prospectus and any other prospectus relating to the Securities, or any such amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company and the Guarantor by such Underwriter through the Representatives expressly for use therein; and will reimburse the Company and the Guarantor for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred. (c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the failure to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party, and, after notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation. Notwithstanding the foregoing, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest or (ii) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. No indemnifying party shall, in connection with any one action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys at any time for all indemnified parties, which firm shall be designated in writing by the Representatives if the indemnified parties under this Section 8 consist of any Underwriter or any of their respective controlling persons, or by the Company and the Guarantor, if the indemnified parties under this Section 8 consist of the Company, the Guarantor or any of the Company's or Guarantor's directors, officers or controlling persons. No indemnifying party shall, without the prior written consent of the 12 indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (i) includes an unconditional release of such indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or failure to act, by or on behalf of any indemnified party. (d) If the indemnification provided for in this Section 8 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and the Guarantor on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor on the one hand and such Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from such offering (before deducting expenses) received by the Company and the Guarantor bear to the total underwriting discounts and commissions received by such Underwriters. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company and the Guarantor on the one hand or such Underwriters on the other and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the applicable Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such 13 fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Securities and not joint. (e) The obligations of the Company and the Guarantor under this Section 8 shall be in addition to any liability, which the Company and the Guarantor may otherwise have; and the obligations of the Underwriters under this Section 8 shall be in addition to any liability which the respective Underwriters may otherwise have. 9. (a) If any Underwriter shall default in its obligation to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement relating to such Designated Securities, the Representatives may in their discretion arrange for themselves or another party or other parties reasonably satisfactory to the Company and the Guarantor to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company and the Guarantor shall be entitled to a further period of thirty-six hours within which to procure another party or other parties reasonably satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company and the Guarantor that they have so arranged for the purchase of such Designated Securities, or the Company and the Guarantor notify the Representatives that they have so arranged for the purchase of such Designated Securities, the Representatives or the Company and the Guarantor shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Final Prospectus, or in any other documents or arrangements, and the Company and the Guarantor agree to file promptly any amendments or supplements to the Registration Statement or the Final Prospectus which the majority in interest of the Underwriters (including the Representatives) may reasonably determine are thereby necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Pricing Agreement with respect to such Designated Securities. (b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company and the Guarantor as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-tenth of the aggregate principal amount of the Designated Securities, then the Company and the Guarantor shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the Pricing Agreement relating to such Designated Securities and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 14 (c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives and the Company and the Guarantor as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-tenth of the aggregate principal amount of the Designated Securities, as referred to in subsection (b) above, or if the Company and the Guarantor shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then the Pricing Agreement relating to such Designated Securities shall thereupon terminate, without liability on the part of any nondefaulting Underwriter, the Company or the Guarantor, except for the expenses to be borne by the Company, the Guarantor and the Underwriters as provided in Section 6 hereof and the indemnity and contribution agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, representations, warranties and other statements of the Company and the Guarantor and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company or the Guarantor, or any officer or director or controlling person of the Company or the Guarantor, and shall survive delivery of and payment for the Securities. The provisions of Sections 6 and 8 hereof shall survive the termination or cancelation of this Agreement. 11. If the sale of the Designated Securities provided for by the Pricing Agreement is not consummated for any reason (other than (1) a breach by any Underwriter of its obligations hereunder, (2) a termination pursuant to Section 9 hereof, or (3) a termination pursuant to the second clause of Section 7(g)(i), Section 7(g)(ii) or Section 7(g)(iii) hereof), the Company and the Guarantor will reimburse the Underwriters severally, through the Representatives, for all out-of-pocket expenses approved in writing by the Representatives, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but neither the Company nor the Guarantor shall then be under any further liability to any Underwriter with respect to such Designated Securities, except that the provisions of Sections 6 and 8 hereof shall survive. If the sale of the Designated Securities provided for by the Pricing Agreement is not consummated due to (1) a breach by any Underwriter of its obligations hereunder, (2) a termination pursuant to Section 9 hereof or (3) a termination pursuant to the second clause of Section 7(g)(i), Section 7(g)(ii) or Section 7(g)(iii) hereof, the Underwriters will be responsible for all out-of-pocket expenses that shall have been incurred by them in connection with the purchase and sale of the Designated Securities, except that the provisions of Sections 6 and 8 hereof shall survive. 12. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each of such Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the Pricing Agreement. 15 All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, telex or facsimile transmission to the address of the Representatives as set forth in the Pricing Agreement; and if to the Company or the Guarantor shall be delivered or sent by mail, telex or facsimile transmission to the Guarantor at 5555 San Felipe Road, Houston, Texas 77056-2723, or by facsimile to (713) 296-9375: Attention: Corporate Secretary; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which address will be supplied to the Company by the Representatives upon request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof. 13. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company, the Guarantor and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and the Guarantor and each person who controls the Company, the Guarantor or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence of each Pricing Agreement. As used herein, "business day" shall mean any day when the Commission's office in Washington D.C. is open for business. 15. This Agreement and each Pricing Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, New York 10011 as its Authorized Agent (the "Authorized Agent") upon whom process may be served in any suit, action or proceeding arising out of or relating to any Pricing Agreement (including the provisions of this Agreement) or the transactions contemplated thereby that may be instituted in any Federal or state court in the Borough of Manhattan in The City of New York by any Underwriter or by any person who controls any Underwriter. 16. This Agreement and each Pricing Agreement may be executed by any one or more of the parties hereto and thereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. 16 If the foregoing is in accordance with your understanding, please sign and return to us seven counterparts hereof. Very truly yours, Marathon Global Funding Corporation By: /s/ MARK A. BLISS ------------------------------------------ Name: Mark A. Bliss Title: Treasurer Marathon Oil Corporation By: /s/ PAUL C. REINBOLT ------------------------------------------ Name: Paul C. Reinbolt Title: Vice President, Finance and Treasurer 17 The foregoing Agreement is hereby confirmed and accepted as of the date first above written. BANC OF AMERICA SECURITIES LLC J. P. MORGAN SECURITIES INC. By: Banc of America Securities LLC By: /s/ LILY CHANG --------------------------------- Name: Lily Chang Title: Principal By: J.P. Morgan Securities Inc. By: /s/ STEVEN CHRISTENSEN --------------------------------- Name: Steven Christensen Title: Vice President For each of themselves and the other several Underwriters named in Schedule I to the applicable Pricing Agreement. ANNEX I FORM OF PRICING AGREEMENT , 20__ [Name(s) and Address(es) of Representative(s)] As Representatives of the several Underwriters named in Schedule I hereto, Dear Sirs: Marathon Global Funding Corporation, a Nova Scotia unlimited liability company (the "Company"), and Marathon Oil Corporation, a Delaware corporation (the "Guarantor"), propose, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated [ ] (the "Underwriting Agreement"), among the Company, the Guarantor and [ ] and [ ], as representatives, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). The Designated Securities are fully and unconditionally guaranteed by the Guarantor. Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Final Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Final Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. The documents required to be delivered by Section 7 of the Underwriting Agreement shall be delivered at the office of [ ], counsel for the Underwriters, at [ ], at the Time of Delivery. I-2 An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us [ ] counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Guarantor and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement Among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, Marathon Global Funding Corporation By: ----------------------------------- Name: Title: Marathon Oil Corporation By: ----------------------------------- Name: Title: I-3 The foregoing Agreement is hereby confirmed and accepted as of the date first above written. [ ] [ ] By: [ ] By: ---------------------------- Name: Title: By: [ ] By: ---------------------------- Name: Title: For themselves and the other several Underwriters named in Schedule I to the applicable Pricing Agreement. ANNEX II FORM OF COMFORT LETTER Pursuant to Section 7(d) of the Underwriting Agreement, the Company shall have requested and caused PricewaterhouseCoopers LLP to have furnished to the Representatives, at the date and time of execution (the "Execution Time") of the Pricing Agreement and at the Time of Delivery, letters, dated respectively as of the Execution Time and as of the Time of Delivery, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder [and that they have performed a review of the unaudited interim financial information of the Company for the [ ]-month period ended [ ], and as at [ ] in accordance with Statement on Auditing Standards No. 71], and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of: [a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 71, of the unaudited interim financial information for the [ ]-month period ended [ ], and as at [ ] incorporated by reference in the Registration Statement and the Final Prospectus;] carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and executive, finance and audit committees of the Company and the Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to December 31, 2001, nothing came to their attention which caused them to believe that: [(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by II-2 reference in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Final Prospectus; ] (2) with respect to the period subsequent to [ ], there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its subsidiaries or capital stock of the Company or decreases in the stockholders' equity of the Company as compared with the amounts shown on the [ ] consolidated balance sheet included or incorporated by reference in the Registration Statement and the Final Prospectus, or for the period from [ ]to such specified date there were any decreases, as compared with the corresponding period in the preceding year in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or (3) the information included or incorporated by reference in the Registration Statement and Final Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12.1 to the Registration Statement, including the information set forth in the Final Prospectus, the information included or incorporated by reference in Items 1, 2, 6, 7 and 11 of the Company's most recently filed Annual Report on Form 10-K, incorporated by reference in the Registration Statement and the Final Prospectus; and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated by reference in the Company's Quarterly Reports on Form 10-Q, incorporated by reference in the Registration Statement and the Final Prospectus, agrees with the II-3 accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. ANNEX III FORM OF CANADIAN OPINION OPINION OF [CANADIAN COUNSEL] PURSUANT TO SECTION 7(i) OF THE UNDERWRITING AGREEMENT June , 2002 Banc of America Securities LLC 100 North Tryon Street Charlotte, NC 28255 and J. P. Morgan Securities Inc. 270 Park Avenue New York, NY 10017 and As Representatives of the several Underwriters, Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 Dear Sirs: Re: MARATHON GLOBAL FUNDING CORPORATION - ISSUE OF ___% NOTES DUE 20__ We have acted as Canadian counsel to Marathon Global Funding Corporation (the "Company") in connection with the creation, issue and sale by the Company of U.S. $400,000,000 principal amount of ___% notes due 20__ (the "Designated Securities"), as guaranteed by Marathon Oil Corporation (the "Guarantor"), pursuant to an underwriting agreement dated June , 2002 (the "Underwriting Agreement") among the Company, the Guarantor, and Banc of America III-2 Securities LLC, for itself and the other several Underwriters named in Schedule __ of the Underwriting Agreement (the "Underwriters"). The Designated Securities were issued pursuant to the provisions of an indenture dated as of June , 2002 (the "Indenture") between the Company, the Guarantor, and [ ] as trustee. This opinion is being delivered to you pursuant to section 7(i) of the Underwriting Agreement. All capitalized terms used herein and not defined will have the meanings ascribed thereto in the Underwriting Agreement. As counsel to the Company, we have participated, together with [ ], United States counsel to the Company, and Cravath, Swaine & Moore, United States counsel to the Underwriters, in the preparation of the Underwriting Agreement and the Indenture. We have also considered such questions of law and examined such statutes, public and corporate records, certificates of governmental authorities and officers of the Company and other documents and conducted such other examinations as we have considered necessary or desirable to enable us to express the opinions hereinafter set forth. In such examination we have assumed the legal capacity of all individuals, the veracity of the information contained in the documents, the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, facsimile or photostatic copies of original documents. We are solicitors qualified to practice law in the Province of ______ and, except to the extent that we rely upon the opinions of other counsel as herein set forth, we express no opinion as to any laws or any matters governed by any laws other than the laws of the Province of ______ and the federal laws of Canada applicable therein. The phrases "to our knowledge" or "we are not aware of" or similar phrases as used to qualify any opinion herein means the actual knowledge or awareness of those lawyers of our firm who were involved in the offering of the Designated Securities without such lawyers making specific inquiry or investigation for the purpose of this opinion. As to various questions of fact material to our opinion, which we have not verified independently, we have relied upon documents or certificates of governmental authorities and the Company or its officers. In expressing the opinions in paragraphs (a) and (f) we have relied, as to factual matters, exclusively on the officer's certificate provided by an officer of the Company (the "Officer's Certificate"), a copy of which is attached, and we believe that we and you may properly rely upon such Officer's Certificate. In expressing the opinion in paragraph (f) with respect to the non-contravention of applicable law, we have assumed that the Designated Securities will not be sold by the Underwriters in Canada and that the Designated Securities will not be sold to purchasers having the intention of re-sale to persons in Canada. On the basis of the foregoing and subject to the qualifications hereinafter expressed, we are of the opinion that: III-3 (a) the Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each Canadian jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company taken as a whole; (b) the Underwriting Agreement has been duly authorized, executed and delivered by the Company; (c) the Indenture has been duly authorized, executed and delivered by the Company; (d) the Designated Securities have been duly authorized, executed and delivered by the Company; (e) the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Designated Securities will not contravene any provisions of the memorandum or articles of incorporation of the Company; (f) to our knowledge, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Designated Securities will not contravene any agreement or other instrument binding upon the Company that has been filed pursuant to and in accordance with the Exchange Act and that is material to the Company taken as a whole, or any judgment, order or decree of any governmental body, agency or court of Canada or any jurisdiction therein, or any provision of applicable law and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture or the Designated Securities; (g) a court of competent jurisdiction in the Province of Nova Scotia would give effect to the choice of New York law as the proper law governing the Indenture, the Designated Securities and the Underwriting Agreement provided that such choice of law is bona fide (in the sense that it was not made with a view to avoiding the consequences of the laws of any other jurisdiction) and provided that such choice of law is not contrary to public policy, as that term is understood under the laws of the Province of Nova Scotia and the federal laws III-4 of Canada applicable therein; to our knowledge, there are no reasons under present law for avoiding the choice of New York law to govern the Indenture, the Designated Securities and the Underwriting Agreement under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein; (h) if the Indenture, the Designated Securities and the Underwriting Agreement were sought to be enforced in the Province of Nova Scotia in accordance with the laws applicable thereto, as chosen by the parties, namely, New York law, a court of competent jurisdiction in the Province of Nova Scotia would, subject to paragraph (g) above, and to the extent specifically pleaded and proved as a fact by expert evidence, recognize the choice of New York law and apply such law to all issues that, under the conflict of laws rules of the Province of Nova Scotia, are to be determined in accordance with the proper or general law of a contract, provided that none of the provisions of the Indenture, the Designated Securities and the Underwriting Agreement, or of New York law, are contrary to public policy as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein; and further provided that, in matters of procedure (as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein), the laws of the Province of Nova Scotia will be applied including the [ ] and a court of competent jurisdiction in the Province of Nova Scotia will retain discretion to decline to hear such action and apply such law (1) if it is contrary to public policy (as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein) for such court to do so, or (ii) if it is not the proper forum to hear such an action, or (iii) if concurrent proceedings are being brought elsewhere; to our knowledge, there are no reasons based on public policy, as that term is understood under the laws of the Province of Nova Scotia and the laws of Canada applicable therein, for avoiding enforcement of the Indenture, the Designated Securities or the Underwriting Agreement (with the exception of the indemnity and contribution provisions contained therein); (i) the laws of the Province of Nova Scotia permit an action to be brought in a court of competent jurisdiction in the Province of Nova Scotia on any final and conclusive judgment in personam for a fixed sum of money of any federal or state court located in the Borough of Manhattan in the City of New York ("New York Court") respecting the enforcement of the Indenture, the Designated Securities and the Underwriting Agreement that is not impeachable as void or voidable under the internal laws of the State of New York for a sum certain if (i) the court rendering such judgment had jurisdiction over the judgment debtor, as recognized by the courts of the Province of Nova Scotia (to our knowledge, submission under the provisions of the Indenture, the Designated Securities and the Underwriting Agreement to the jurisdiction of the New York Court will be sufficient for this purpose), and the judgment debtor was properly served in the action leading to such III-5 judgment; (ii) such judgment was not obtained by fraud or in a manner contrary to natural justice and the enforcement thereof would not be inconsistent with public policy, as such term is understood under the laws of the Province of Nova Scotia, or contrary to any order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada); (iii) the enforcement of such judgment does not constitute, directly or indirectly, the enforcement of foreign revenue, expropriation or penal laws or other laws of a public law nature; (iv) no new admissible evidence relevant to the action is discovered prior to rendering of judgment by the court in the Province of Nova Scotia; and (v) the action to enforce such judgment is commenced within the applicable limitation periods; to our knowledge, there are no reasons under present law of the Province of Nova Scotia for avoiding recognition of said judgments of New York Courts which might be rendered in respect of the Indenture, the Designated Securities and the Underwriting Agreement based upon public policy, as that term is understood under the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein; and (j) in an action on a final and conclusive judgment in personam for a fixed sum of money of a New York Court which is not impeachable as void or voidable under New York law, a court of competent jurisdiction in the Province of Nova Scotia would not refuse to recognize the jurisdiction of the court rendering such judgment on the basis of process having been served on CT Corporation System [WHO IS MARATHON FUNDING'S EQUIVALENT?] as the agent to receive service of process in the United States of America appointed by the Company under the Indenture and the Underwriting Agreement provided the Company has not purported to revoke the appointment, or CT Corporation System has not terminated the agency or otherwise rendered service on it ineffective. Our opinion in paragraph (h) relating to the enforceability of the Indenture, the Designated Securities and the Underwriting Agreement, as applicable, and our opinion in paragraphs (i) and (j) relating to a final and conclusive judgment in personam for a fixed sum of money of a New York court are subject to the following limitations and qualifications: (i) enforceability may be limited by bankruptcy, insolvency, limitations of action, reorganization, moratorium or other laws of general application now or hereafter in effect relating to or affecting the rights of creditors; (ii) enforceability may be limited by general principles of equity, including the limitation that the grant of equitable remedies, including specific performance, is discretionary and may not be available; III-6 (iii) enforcement of the rights to indemnity and contribution may be limited by applicable law and may or may not be ordered by a court on grounds of public policy; (iv) enforcement is subject to the equitable or statutory powers of the courts to stay proceedings before them and the execution of judgments; (v) enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (vi) under the Currency Act (Canada), a court of competent jurisdiction in the Province of Nova Scotia may only give judgment in Canadian dollars; and (vii) interest payable on a judgment debt may be limited by the provisions of the Interest Act (Canada) and the [ ]. This opinion is furnished to you by us as Canadian counsel to the Company is solely for the benefit of the addressees hereof and not for the benefit of any other person and is rendered solely in connection with the sale of the Designated Securities. This opinion may not be quoted in whole or in part, or otherwise referred to or used for any purpose, without our prior written consent except that [ ] and Cravath, Swaine & Moore may quote and rely on this opinion for purposes of their opinions delivered to the Underwriters on the date hereof in connection with the creation, issue and sale by the Company of the Designated Securities and related transactions. Yours very truly, Enclosures ANNEX IV FORM OF IN-HOUSE COUNSEL'S OPINION [ ] [ ], As Representatives of the several Underwriters c/o [ ] Ladies and Gentlemen: I am the [ ]of Marathon Oil Corporation, a Delaware corporation (the "Guarantor"). I am furnishing this opinion under Section 7(c) of the Underwriting Agreement dated [ ] (the "Underwriting Agreement") that is incorporated by reference into the Pricing Agreement dated [ ] (the "Pricing Agreement") by and among Marathon Global Funding Corporation, a Nova Scotia corporation (the "Company"), Marathon Oil Corporation (the "Guarantor") and the several Underwriters named in Schedule I to the Pricing Agreement (the "Underwriters"), relating to the issuance and sale by the Company to the Underwriters of [$___,000,000 aggregate principal amount of [ ] Notes due [ ] and] $___,000,000 aggregate principal amount of [ ] Notes due [ ] (the "Securities"). The Company will issue the Securities under an Indenture (the "Indenture") dated as of [ ] between it, the Guarantor and JPMorgan Chase Bank, as trustee. The Securities will be fully and unconditionally guaranteed (the "Guarantee") by the Guarantor pursuant to the Indenture. The Company and the Guarantor have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (Registration Nos. 333-90034 and 333-90034-01) relating to the registration under the Securities Act of 1933, as amended (the "1933 Act"), and the offering thereof from time to time in accordance therewith and the rules and regulations of the Commission thereunder, of securities of the Company, to be fully and unconditionally guaranteed by the Guarantor, including the Securities. That registration statement, as amended by post-effective amendment No. 1 thereto, which the Company and the Guarantor filed with the Commission on June 14, 2002, at the time that registration statement became effective, including all documents incorporated by reference therein, is hereinafter referred to as the "Registration Statement," and the prospectus dated June 17, 2002, together with the prospectus supplement dated June 18, 2002,each as filed with the Commission in accordance with Rule 424(b) under the 1933 Act, including all documents incorporated by reference therein, are hereinafter collectively referred to as the "Prospectus." I have, or attorneys under my supervision have, examined the originals, or copies certified or otherwise identified, of the restated certificate of incorporation and by-laws, each as amended to date, of the Guarantor, the Registration Statement, the Prospectus, the Underwriting Agreement, the Pricing Agreement, the Indenture, corporate records of the Guarantor, including IV-2 minute books of the Guarantor, certificates of public officials and of representatives of the Guarantor, oral representations of the Guarantor's employees, statutes and other instruments and documents, as a basis for the opinions I hereinafter express. In giving these opinions, I have relied on certificates of representatives of the Guarantor and of public officials with respect to the accuracy of the factual matters those certificates cover or contain, and I have assumed that all signatures on documents I have examined are genuine, all documents submitted to me as originals are authentic, all documents submitted to me as certified or photostatic copies conform to the original copies of those documents and those original copies are authentic. On the basis of the foregoing and subject to the assumptions, limitations and qualifications I set forth herein, I am of the following opinions: 1. The authorized capital stock of the Guarantor is comprised of 550,000,000 shares of common stock, par value $1.00 per share ("Common Stock"), and 26,000,000 shares of preferred stock, no par value ("Preferred Stock"). No shares of Preferred Stock have been issued. All the issued and outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable. 2. Each subsidiary of the Guarantor listed on Annex A hereto (each a "Subsidiary" and, collectively, the "Subsidiaries") has been duly incorporated or formed and is validly existing as a corporation, limited liability company or limited partnership in good standing under the laws of the jurisdiction of its incorporation or formation, as the case may be, and each Subsidiary has full corporate or other power and authority to own its properties and to conduct its business as described in the Prospectus. All the outstanding shares of capital stock or other equity ownership interests of each of the Subsidiaries which the Prospectus indicates are owned by the Guarantor, directly or indirectly through one or more Subsidiaries, to my knowledge, after due inquiry, free and clear of any perfected security interest and any other material security interest, claim, lien or encumbrance (other than restrictions on transfer contained in the Guarantor's joint venture agreements). 3. I do not know of (a) any pending or threatened legal or governmental proceedings involving the Guarantor or any Subsidiary that are required to be disclosed in the Prospectus, or any amendment or supplement thereto, which are not disclosed in the Prospectus or (b) any franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required. The statements included or incorporated by reference in the Prospectus under the headings "Description of Notes," "Description of Debt Securities," and "Management's Discussion and Analysis of Environmental Matters, Litigation and Contingencies," insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings. 4. The issuance and sale of the Securities, including the Guarantee, the consummation of any of the other transactions contemplated by the Pricing Agreement and the compliance by the Guarantor with the terms of the Pricing Agreement will not conflict with, or result in a breach or violation of or the imposition of any lien, charge or encumbrance on any property or assets of the Guarantor or any Subsidiary under, (i) the terms of any indenture, IV-3 contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement or instrument to which the Guarantor or any Subsidiary is a party or bound or to which its or their property is subject, except for any such conflicts, breaches, violations, liens, charges or encumbrances as would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole or (ii) to my knowledge, any statute, law, rule, regulation, judgment, order or decree applicable to the Guarantor or any Subsidiary of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Guarantor or that Subsidiary or any of its properties, except for such conflicts, breaches or violations which would not, individually or in the aggregate, have a material adverse effect on the consolidated financial position, stockholders' equity or results of operations of the Guarantor and its subsidiaries, taken as a whole. 5. The documents incorporated by reference in the Prospectus as amended or supplemented (other than (a) the financial statements (including the notes thereto and the auditor's reports thereon) included or incorporated by reference therein or omitted therefrom and (b) the other accounting, financial, reserve engineering and statistical information contained or incorporated by reference therein or omitted therefrom, as to which such counsel need not comment), as of the respective dates on which they became effective or were filed with the Commission, as the case may be, appear on their face to be appropriately responsive in all material respects to the requirements of the 1933 Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder. 6. No holders of securities of the Company or the Guarantor have rights to the registration of such securities under the Registration Statement. I have participated in conferences with officers and other representatives of the Company and the Guarantor, representatives of the independent public accountants of the Guarantor and your representatives at which the contents of the Registration Statement and the Prospectus and related matters were discussed. Although I have not undertaken to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements the Registration Statement or the Prospectus contains, I advise you that, on the basis of the foregoing, no facts have come to my attention that lead me to believe that the Registration Statement (other than (a) the financial statements and schedules (including the notes thereto and the auditor's reports thereon) included or incorporated by reference therein or omitted therefrom and (b) the other accounting, financial, reserve engineering and statistical information contained or incorporated by reference therein or omitted therefrom, as to which I have not been asked to comment, and it being understood that I am making no statement as to the accuracy of any statement or representation in any exhibit to the Registration Statement), as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus (other than (a) the financial statements (including the notes thereto and the auditor's reports thereon) included or incorporated by reference therein or omitted therefrom and (b) the other accounting, financial, reserve engineering and statistical information contained or incorporated by reference therein or omitted therefrom, as to which I have not been asked to comment), as of its issue date or the date hereof, contained or contains an untrue statement of a material fact or IV-4 omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In this letter, phrases such as "to my knowledge" and those with equivalent wording refer to my conscious awareness without any independent investigation. I am licensed to practice law in the State of Texas. The opinions set forth above are limited in all respects to matters of the laws of the State of Texas, the General Corporation Law of the State of Delaware and applicable federal law. I am providing this opinion in my capacity as General Counsel of the Guarantor and not in my individual capacity as a lawyer. I am furnishing this letter to you solely for your use in connection with the transactions consummated on the date hereof under the Pricing Agreement and may not be relied on by any other person or for any other purpose. This letter speaks as of the date hereof, and I disclaim any obligation to update it. Very truly yours, ANNEX V FORM OF OUTSIDE COUNSEL'S OPINION [Letterhead of Baker Botts L.L.P.] [ ] [ ], As Representatives of the several Underwriters c/o [ ] Ladies and Gentlemen: We are furnishing this opinion letter to you at the request of Marathon Oil Corporation, a Delaware corporation (the "Guarantor"), under Section 7(c) of the Underwriting Agreement dated [ ] (the "Underwriting Agreement") that is incorporated by reference into the Pricing Agreement dated [ ] (the "Pricing Agreement") by and among Marathon Global Funding Corporation, a Nova Scotia corporation (the "Company"), the Guarantor and the several Underwriters Schedule I to the Pricing Agreement names (the "Underwriters"), relating to the sale by the Company to the Underwriters of [$___,000,000 aggregate principal amount of [ ] Notes due [ ] and $___,000,000 aggregate principal amount of [ ] Notes due [ ], fully and unconditionally guaranteed by the Guarantor (such Notes, together with the guarantees relating thereto by the Guarantor (the "Guarantees"), being referred to herein as the "Securities"). The Securities will be issued under an Indenture (the "Indenture") dated as of [ ] among the Company, the Guarantor and [ ], as trustee. The Company and the Guarantor have filed with the Securities and Exchange Commission (the "Commission") a registration statement on Form S-3 (Registration No. #333-90034 and #333-90034-01) relating to the registration under the Securities Act of 1933 (the "1933 Act"), and the offering thereof from time to time in accordance therewith and the rules and regulations of the Commission thereunder, of debt securities of the Company, to be fully unconditionally guaranteed by the Guarantor, including the Securities. That registration statement which the Company and the Guarantor filed with the Commission on June 7, 2002, at the time that registration statement became effective, including all documents filed as part thereof or incorporated by reference therein, is hereinafter referred to as the "Registration Statement," and the prospectus dated June 17, 2002, together with the prospectus supplement dated [ ], each as filed with the Commission in accordance with Rule 424(b) under the 1933 Act, including all documents incorporated by reference therein, are hereinafter collectively referred to as the "Prospectus." We have examined the originals, or copies certified or otherwise identified, of the restated certificate of incorporation and by-laws, each as amended to date, of the Guarantor (the "Charter Documents"), the Registration Statement, the Prospectus, the Underwriting Agreement, V-2 the Pricing Agreement, the Indenture, the Establishment Action (as defined in the Indenture) relating to the Securities, the form of the Securities, corporate records of the Guarantor, including minute books of the Guarantor it has furnished to us, certificates of public officials and of representatives of the Guarantor, statutes and other instruments and documents, as a basis for the opinions we hereinafter express. In giving these opinions, we have relied on certificates of officers of the Guarantor and of public officials with respect to the accuracy of the factual matters those certificates cover or contain, and we have assumed that all signatures on documents we have examined are genuine, all documents submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies conform to the original copies of those documents and those original copies are authentic. In giving the opinions set forth in paragraphs 4 and 8 below, we have relied on oral advice of the staff of the Commission that the Commission has declared the Registration Statement effective under the 1933 Act. On the basis of the foregoing and subject to the assumptions, limitations and qualifications we set forth herein, we are of the following opinions: 1. The Guarantor is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and to conduct the business of the Marathon Group as described in the Prospectus [as amended or supplemented]. 2. The Guarantor has duly authorized, executed and delivered the Pricing Agreement. 3. The Guarantor has duly authorized the issuance and sale of the Guarantees. When executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the Pricing Agreement, assuming the due authorization, execution and delivery by the Company of the Indenture, the Securities will constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, and the Guarantees will constitute valid and legally binding obligations of the Guarantor, enforceable against the Guarantor in accordance with their terms and entitled to the benefits of the Indenture. The Securities and the Guarantees conform, as to legal matters, in all material respects to the descriptions thereof the Prospectus [as amended or supplemented] contains. 4. The Guarantor has duly authorized, executed and delivered the Indenture. Assuming the due authorization, execution and delivery by the Company of the Indenture, the Indenture constitutes a valid and legally binding obligation of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms and has been duly qualified under the Trust Indenture Act of 1939 (the "Trust Indenture Act"). 5. The issuance and sale of the Securities and the Guarantees, the consummation of any of the other transactions contemplated by the Pricing Agreement and the compliance by the Guarantor with the terms of the Pricing Agreement will not result in any violation of (a) the Charter Documents, (b) the terms of any agreement or instrument to which the Guarantor or any Subsidiary is a party or bound or to which its or their property is subject and listed on Schedule I V-3 hereto or (c) the laws of the State of New York or Texas, the General Corporation Law of the State of Delaware or the Federal laws of the United States. 6. No consent, approval, authorization or order of, or registration or qualification with, any court or governmental agency or body having jurisdiction over the Guarantor or any of its properties is required on the part of the Guarantor under any applicable law for issuance and sale of the Securities or the consummation of the other transactions the Pricing Agreement contemplates, except such as have been obtained under the 1933 Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as state securities or Blue Sky laws may require in connection with the purchase and distribution of the Securities by the Underwriters. 7. The Registration Statement and the Prospectus and any amendments and supplements thereto made by the Company and the Guarantor prior to the date hereof, as of their respective effective or issue dates, appear on their face to have been appropriately responsive in all material respects to the requirements of the 1933 Act and the Trust Indenture Act. 8. The Registration Statement has become effective under the 1933 Act and, to our knowledge, no stop order suspending its effectiveness has been issued and no proceedings for that purpose are pending before or threatened by the Commission. Any filing of the Prospectus Rule 424(b) under the 1933 Act requires has been timely made in accordance with that rule. 9. We do not know of any pending or threatened legal or governmental proceedings with respect to the Company or the Guarantor that are required to be disclosed in the Prospectus [as amended or supplemented], or any amendment or supplement thereto, which are not disclosed in the Prospectus [as amended or supplemented]. 10. Neither the Company nor the Guarantor is and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus as amended or supplemented, will be an "investment company" as the Investment Company Act of 1940 defines that term. We have participated in conferences with officers and other representatives of the Company and Guarantor, representatives of the independent public accountants of the Company and Guarantor, your representatives and your counsel at which the contents of the Registration Statement and the Prospectus and related matters were discussed. Although we have not undertaken to determine independently, and do not assume any responsibility for, the accuracy, completeness or fairness of the statements the Registration Statement or the Prospectus contains (except to the extent set forth in the last sentence of paragraph 3 above), we advise you that, on the basis of the foregoing, no facts have come to our attention that lead us to believe that the Registration Statement, as of its effective date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as of its issue date or the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. In paragraph 7 above and in this paragraph, references to the Registration Statement or the Prospectus do not include references to any of the following, as V-4 to which we have not been asked to comment, which the Registration Statement or the Prospectus contains or incorporates by reference or omits: (a) the financial statements, including the notes and schedules, if any thereto, or the auditor's reports on the audited portions thereof, (b) the other accounting, financial, reserve engineering and statistical information, (c) any statement or representation in any exhibit to the Registration Statement or (d) the information respecting the business of the U.S. Steel Group. Our opinions above as to the enforceability of the Securities, the Guarantees, and the Indenture are subject to the effect of (a) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws relating to or affecting creditors' rights generally, (b) general principles of equity (regardless of whether that enforcement is considered in a proceeding in equity or at law) and (c) any implied covenants of good faith and fair dealing. In this letter, references to federal statutes include all amendments thereto and all rules and regulations of the Commission thereunder, in each as in effect on the date hereof. In this letter, phrases such as "to our knowledge," "known to us" and those with equivalent wording refer to the conscious awareness of information by the lawyers of this Firm who have prepared or signed this letter or been actively involved in assisting and advising the Company and the Guarantor in connection with the preparation of the Registration Statement, the Prospectus and the execution and delivery of the Pricing Agreement, without any independent investigation by any lawyer of this Firm. Except as we otherwise expressly state, we limit our opinions in this letter in all respects to matters of the laws of the States of New York and Texas and the General Corporation Law of the State of Delaware. We are furnishing this letter to you solely for your use in connection with the transactions consummated on the date hereof under the Pricing Agreement, and it may not be relied on by any other person or for any other purpose. This letter speaks as of the date hereof, and we disclaim any obligation to update it. Very truly yours, ANNEX VI June ___, 2002 Banc of America Securities LLC 100 North Tryon Street Charlotte, NC 28255 and/ J.P. Morgan Securities Inc. 270 Park Avenue New York, NY 10017 and As Representatives of the several Underwriters, Cravath, Swaine & Moore Worldwide Plaza 825 Eighth Avenue New York, NY 10019-7475 Dear Sirs: RE: MARATHON GLOBAL FUNDING CORPORATION ISSUE OF U.S. $400,000,000 PRINCIPAL AMOUNT OF % NOTES DUE , 2012 We have acted as special Canadian tax counsel to Marathon Global Funding Corporation (the "Company") in connection with the issue and sale by the Company of U.S. $400,000,000 principal amount of o% Notes due June ___, 2012 of the Company (the "Designated Securities"), pursuant to an Underwriting Agreement dated June ___, 2002 (the "Underwriting Agreement") between the Company, Marathon Oil Corporation (the "Guarantor") and Banc of America Securities LLC, for itself and the other several Underwriters named in Schedule ___ of the Underwriting Agreement (the "Underwriters"). The Notes are issued pursuant to the provisions of a trust indenture (the "Indenture") dated as of June ___, 2012 between the Company, the Guarantor and JP Morgan Chase Bank, as trustee (the "Trustee"). Scope of Review, Assumptions and Qualifications As such counsel, we have reviewed: the Underwriting Agreement; a Pricing Agreement dated June __, 2002; the Indenture; VI-2 the preliminary prospectus of the Company dated June 17, 2002; and the preliminary prospectus supplement of the Company dated June ___, 2002 relating to the offering of the Designated Securities filed with the SEC (the "Prospectus Supplement"). Applicable Law This opinion is rendered solely with respect to the federal laws of Canada. Opinion Based upon the foregoing, we are of the opinion that: The information in the Prospectus Supplement under the caption "Canadian Federal Income Tax Considerations" is correct in all material respects. This opinion is furnished to you by us as special Canadian tax counsel to the Company and is solely for the benefit of the addressees hereof and not for the benefit of any other person and is rendered solely in connection with the sale of the Designated Securities. This opinion may not be quoted in whole or in part, or otherwise referred to or used for any purpose, without our prior written consent except that [ ] and Cravath, Swaine & Moore may quote and rely on this opinion for purposes of their opinions delivered to the Underwriters on the date hereof in connection with the creation, issue and sale by the Company of the Designated Securities and related transactions. Yours very truly, MACLEOD DIXON LLP Per: EX-1.2 4 h97862exv1w2.txt PRICING AGREEMENT DATED 6/18/02 EXHIBIT 1.2 EXECUTION VERSION MARATHON GLOBAL FUNDING CORPORATION DEBT SECURITIES (FULLY AND UNCONDITIONALLY GUARANTEED BY MARATHON OIL CORPORATION) PRICING AGREEMENT New York, New York June 18, 2002 Banc of America Securities LLC J.P. Morgan Securities Inc. As Representatives of the several Underwriters, c/o Banc of America Securities LLC 100 North Tryon Street Charlotte, NC 28255 c/o J.P. Morgan Securities Inc. 270 Park Avenue New York, NY 10017 Dear Sirs: Marathon Global Funding Corporation, a Nova Scotia unlimited liability company (the "Company"), and Marathon Oil Corporation, a Delaware corporation (the "Guarantor"), propose, subject to the terms and conditions stated herein and in the Underwriting Agreement, dated June 18, 2002 (the "Underwriting Agreement"), among the Company, the Guarantor, and Banc of America Securities LLC and J.P. Morgan Securities Inc., as Representatives of the several underwriters, to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). The Designated Securities are fully and unconditionally guaranteed by the Guarantor. Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, except that each representation and warranty which refers to the Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Underwriting Agreement in relation to the Final Prospectus (as therein defined), and also a representation and warranty as of the date of this Pricing Agreement in relation to the Final Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing 2 Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. The documents required to be delivered by Section 7 of the Underwriting Agreement shall be delivered at the office of Cravath, Swaine & Moore, counsel for the Underwriters, at 825 Eighth Avenue, New York, New York 10019 at the Time of Delivery. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. [THE REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK] 3 If the foregoing is in accordance with your understanding, please sign and return to us seven counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters, the Company, and the Guarantor. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement Among Underwriters, the form of which shall be submitted to the Company for examination upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, Marathon Global Funding Corporation By: /s/ MARK A. BLISS ------------------------------------ Name: Mark A. Bliss Title: Treasurer Very truly yours, Marathon Oil Corporation By: /s/ PAUL C. REINBOLT ------------------------------------ Name: Paul C. Reinbolt Title: Vice President, Finance and Treasurer 4 The foregoing Agreement is hereby confirmed and accepted as of the date first above written. BANC OF AMERICA SECURITIES LLC J. P. MORGAN SECURITIES INC. By: Banc of America Securities LLC By: /s/ LILY CHANG ------------------------------------ Name: Lily Chang Title: Principal By: J.P. Morgan Securities Inc. By: /s/ S.E. CHRISTENSEN ------------------------------------ Name: S.E. Christensen Title: Vice President For each of themselves and the other several Underwriters named in Schedule I to this Agreement. 5 SCHEDULE I
PRINCIPAL AMOUNT OF DESIGNATED UNDERWRITER SECURITIES TO BE PURCHASED - ----------------------------------------------------------- ----------------------------------------------------- Banc of America Securities LLC $130,000,000 J.P. Morgan Securities Inc. $130,000,000 Commerzbank Capital Markets Corp. $ 23,077,000 Credit Suisse First Boston Corporation $ 23,077,000 Lehman Brothers Inc. $ 23,077,000 Scotia Capital (USA) Inc. $ 23,077,000 ABN AMRO Incorporated $ 15,898,000 Mellon Financial Markets, LLC $ 15,897,000 Morgan Stanley & Co. Incorporated $ 15,897,000 ------------ Total: $400,000,000 ============
6 SCHEDULE II TITLE: 6% Notes Due 2012. PRINCIPAL AMOUNT: $400,000,000. INDENTURE: Indenture, dated as of June 14, 2002, between the Company, the Guarantor, and JPMorgan Chase Bank, as Trustee. INTEREST: 6% from June 21, 2002, payable semiannually on January 1 and July 1, commencing January 1, 2003, to holders of record on the preceding June 15 and December 15, as the case may be. MATURITY: July 1, 2012. PURCHASE PRICE: 98.524% of principal amount plus accrued interest, if any, from June 21, 2002. EXPECTED REOFFERING PRICE: 99.174% of principal amount, subject to change by the undersigned. SINKING FUND: None. DELAYED DELIVERY CONTRACTS: None. OPTIONAL REDEMPTION: The Notes will be redeemable in whole or in part at any time and from time to time, at the option of the Company, at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in Schedule A attached hereto) plus 25 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the date of redemption. CLOSING: 10 a.m. on June 21, 2002, at the offices of Cravath, Swaine & Moore, 825 Eighth Avenue, New York, New York, in same day funds. NAMES AND ADDRESSES OF CO-REPRESENTATIVES: - --------------------------------------- --------------------------------------- Banc of America Securities LLC J.P. Morgan Securities Inc. 100 North Tryon Street, 6th Floor 270 Park Avenue, 7th Floor Charlotte, NC 28255 New York, NY 10017 Attention: Transaction Execution Group - --------------------------------------- --------------------------------------- 7 SCHEDULE A "Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York or Houston, Texas and on which commercial banks are open for business in New York, New York and Houston, Texas. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes. "Comparable Treasury Price" means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. "Independent Investment Banker" means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time. "Reference Treasury Dealer" means Banc of America Securities LLC and J.P. Morgan Securities Inc. and their respective successors, and two other firms that are primary U.S. Government securities dealers (each a "Primary Treasury Dealer") which the Company specifies from time to time; provided, however, that if any of them ceases to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity 8 of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date. EX-4.1 5 h97862exv4w1.txt INDENTURE DATED JUNE 14, 2002 EXHIBIT 4.1 MARATHON GLOBAL FUNDING CORPORATION, Issuer MARATHON OIL CORPORATION, Guarantor and JPMORGAN CHASE BANK, Trustee INDENTURE ---------- Dated as of June 14, 2002 ---------- 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:
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
- -------------- NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture. Table of Contents
Page ---- 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................................................9 SECTION 1.04 Acts of Holders; Record Dates.........................................................9 SECTION 1.05 Notices, Etc., to Trustee, Company and Guarantor.....................................10 SECTION 1.06 Notice to Holders; Waiver of Notice..................................................10 SECTION 1.07 Conflict With Trust Indenture Act....................................................11 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........................................................................12 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..........................................................15 SECTION 2.04 Form of Legend for Global Securities.................................................18 SECTION 2.05 Form of Trustee's Certificate of Authentication......................................19 ARTICLE III THE SECURITIES.......................................................................................19 SECTION 3.01 Amount Unlimited; Issuable in Series.................................................19 SECTION 3.02 Denominations........................................................................22 SECTION 3.03 Execution, Authentication, Delivery and Dating.......................................22 SECTION 3.04 Temporary Securities.................................................................23 SECTION 3.05 Registration, Registration of Transfer and Exchange..................................24 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...........................................................30 ARTICLE V REMEDIES...............................................................................................30 SECTION 5.01 Events of Default....................................................................30 SECTION 5.02 Acceleration of Maturity; Rescission and Annulment...................................32 SECTION 5.03 Collection of Indebtedness and Suits for Enforcement by Trustee......................33
i 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............36 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 or the Guarantor...................44 SECTION 6.14 Appointment of Authenticating Agent..................................................44 ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR.........................................46 SECTION 7.01 Company to Furnish Trustee Names and Addresses of Holders............................46 SECTION 7.02 Preservation of Information; Communications to Holders...............................47 SECTION 7.03 Reports by Trustee...................................................................47 SECTION 7.04 Reports by Company and the Guarantor.................................................47 ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................................48 SECTION 8.01 Guarantor May Consolidate, Etc., Only on Certain Terms...............................48 SECTION 8.02 Successor Substituted................................................................48 SECTION 8.03 Assignment by and Substitution of the Company........................................49 SECTION 8.04 Trustee Entitled to Opinion..........................................................49 ARTICLE IX SUPPLEMENTAL INDENTURES...............................................................................49 SECTION 9.01 Supplemental Indentures Without Consent of Holders...................................49
ii 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 SECTION 9.05 Conformity With Trust Indenture Act..................................................52 SECTION 9.06 Reference in Securities to Supplemental Indentures...................................52 ARTICLE X COVENANTS..............................................................................................52 SECTION 10.01 Payment of Principal, Premium and Interest...........................................52 SECTION 10.02 Maintenance of Office or Agency......................................................53 SECTION 10.03 Money for Securities Payments to be Held in Trust....................................53 SECTION 10.04 Statement by Officers as to Default..................................................54 SECTION 10.05 Mortgage of Certain Property.........................................................54 SECTION 10.06 Sale and Leaseback of Certain Properties.............................................56 SECTION 10.07 Waiver of Certain Covenants..........................................................57 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....................................58 SECTION 11.04 Notice of Redemption.................................................................59 SECTION 11.05 Deposit of Redemption Price..........................................................59 SECTION 11.06 Securities Payable on Redemption Date................................................60 SECTION 11.07 Securities Redeemed in Part..........................................................60 ARTICLE XII SINKING FUNDS........................................................................................60 SECTION 12.01 Applicability of Article.............................................................60 SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities................................61 SECTION 12.03 Redemption of Securities for Sinking Fund............................................61 ARTICLE XIII DEFEASANCE AND COVENANT DEFEASANCE..................................................................61 SECTION 13.01 Company's Option to Effect Defeasance or Covenant Defeasance.........................61 SECTION 13.02 Defeasance and Discharge.............................................................62 SECTION 13.03 Covenant Defeasance..................................................................62 SECTION 13.04 Conditions to Defeasance or Covenant Defeasance......................................63 SECTION 13.05 Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions.............................................................65 SECTION 13.06 Reinstatement........................................................................66 ARTICLE XIV GUARANTEES...........................................................................................66 SECTION 14.01 Guarantees...........................................................................66 SECTION 14.02 Proceedings Against the Guarantor....................................................68 SECTION 14.03 Guarantees for Benefit of Holders....................................................68
iii INDENTURE, dated as of June 14, 2002, among MARATHON GLOBAL FUNDING CORPORATION, a Nova Scotia unlimited liability company (the "Company"), having its principal office at 5555 San Felipe Road, Houston, Texas 77056-2723, MARATHON OIL CORPORATION, a Delaware Corporation (the "Guarantor"), 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. The Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Guarantees. All things necessary to make this Indenture a valid agreement of the Company and the Guarantor, 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 and the Guarantees 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; 1 (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 (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," when used with reference to the Company or the Guarantor, means the board of directors of the Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, to have been duly adopted by the Board of Directors of the Company or the Guarantor, as the case may be, 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 Global Funding 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 two Officers of the Company and, in the case of a Company Order pursuant to Section 3.01 or 3.03, also in the name of the Guarantor, by an Officer of the Guarantor, and delivered to the Trustee. "Consolidated Net Tangible Assets" means the aggregate value of all assets of the Guarantor 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 2 generally accepted accounting principles and calculated on a basis consistent with the Guarantor's most recent audited consolidated financial statements). "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, unlimited 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. 3 "Foreign Government Obligations" means, with respect to the Securities of any series that are denominated in a Foreign Currency, securities that are (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). "Guarantee" shall mean the guarantee of the Company's obligations under the Securities by the Guarantor as provided in Article XIV. "Guarantor" means Marathon Oil Corporation until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Guarantor" shall mean such successor Person. "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). 4 "Officer" means, with respect to any Person, the Chairman of the Board, any Vice Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer, any Vice President, the Treasurer, any Assistant Treasurer, the Comptroller, any Assistant Comptroller, the Secretary or any Assistant Secretary of such Person. "Officers' Certificate" means a certificate signed by two Officers of a Person and, in the case of an Officers' Certificate of the Company pursuant to Section 3.01 or 3.03, also by an Officer of the Guarantor, 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 or the Guarantor, and who shall be reasonably acceptable to the Trustee. "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: 5 (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 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, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor 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, the Guarantor 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. 6 "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. "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 Guarantor or by one or more other Subsidiaries, or by the Guarantor 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 7 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 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, the Guarantor or both of them to the Trustee to take any action under any provision of this Indenture, the Company, the Guarantor or both of them, as the case may be, 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 the Guarantor, 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. 8 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 by 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 or the Guarantor 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 or the Guarantor stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, 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. 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 and the Guarantor. 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, the Company and the Guarantor, 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. 9 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, the Company or the Guarantor 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. SECTION 1.05 Notices, Etc., to Trustee, Company and Guarantor. 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, the Company or the Guarantor 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 or the Guarantor by the Trustee or 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 address last furnished in writing to the Trustee by the Company or the Guarantor, 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 10 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. 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 and the Guarantor shall bind its successors and assigns, whether so expressed or not. SECTION 1.10 Separability Clause. In case any provision in this Indenture, the Securities or the Guarantees 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, the Guarantor or the Trustee, as such, shall not have any liability for any obligations of the Company under the Securities, for any obligations of the Guarantor under the Guarantees, or for any obligations of the Company, the Guarantor 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. 11 SECTION 1.12 Governing Law. THIS INDENTURE, THE SECURITIES AND THE GUARANTEES 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. 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 GLOBAL FUNDING CORPORATION [Insert title of the Series] No.____________ $____________ 12 MARATHON GLOBAL FUNDING CORPORATION, an unlimited liability company duly organized and existing under the laws of the Province of Nova Scotia, Canada (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 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 13 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.] The Guarantor hereby fully and unconditionally guarantees on a senior basis to the Holders from time to time (a) the full and punctual payment of the principal of any Security when and as the same shall become due, whether at Stated Maturity thereof, by acceleration, redemption or otherwise, or in the event of default or any sinking fund payment, and (b) the full and punctual payment of any interest on any Security when and as the same shall become due, subject to any applicable grace period. 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. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated:_______________________. MARATHON GLOBAL FUNDING CORPORATION, as Issuer By ---------------------------------------------- Attest: ------------------------------------------------ MARATHON OIL CORPORATION, as Guarantor By ---------------------------------------------- Attest: ------------------------------------------------ 14 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 __________________, 20__ (herein called the "Indenture," which term shall have the meaning assigned to it in such instrument), among the Company, as Issuer, Marathon Oil Corporation, as Guarantor, 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 Guarantor, 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,
Redemption Redemption Year Price Year Price ---- ---------- ---- ----------
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 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 15 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,
Redemption Price Redemption Price for Redemption Otherwise for Redemption Through Than Through Operation Year Operation of the Sinking Fund of the Sinking Fund ---- ----------------------------- ------------------------
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 or the Guarantor 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 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 and the Guarantor's 16 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, the Guarantor 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 or the Guarantor; (2) to add to the covenants of the Company or the Guarantor; (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 Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor 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 and the Guarantor 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 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 17 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 or the Guarantor, as applicable, 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 Guarantor, the Trustee and any agent of the Company, the Guarantor 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 Guarantor, 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. 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. 18 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; (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 19 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 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); 20 (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; (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. 21 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 an Officer of the Company and on behalf of the Guarantor, by an Officer of the Guarantor, under their respective corporate seals reproduced thereon which may, but need not, be attested. The signature of any of these officers on the Securities may be manual or facsimile. The seal may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Security, and the failure to affix the seal of the Company or the Guarantor shall not affect the validity of the Securities or the Guarantees. Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company or the Guarantor, as the case may be, shall bind the Company or the Guarantor, as the case may be, 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 and the Guarantor 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; (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, 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, such Securities and the related Guarantees will constitute valid and legally binding obligations of the Company and the Guarantor, respectively, enforceable in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general 22 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 as of 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 or the related Guarantees. SECTION 3.04 Temporary Securities. Pending the preparation of definitive Securities of any series, the Company and the Guarantor 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. If temporary Securities of any series are issued, the Company and the Guarantor 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 and the Guarantor 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 23 so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture and the related Guarantees 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 for 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 and the Guarantor 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 and the Guarantor 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 and the related Guarantees, 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 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 24 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 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 and the Guarantor shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security 25 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, the Guarantor 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, the Guarantor or the Trustee that such Security has been acquired by a bona fide purchaser, the Company and the Guarantor 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 and the related Guarantees 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 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 or the Guarantor, at its election in each case, as provided in clause (1) or (2) below: (1) The Company or the Guarantor, as the case may be, 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 26 business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company or the Guarantor 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 or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, of such Special Record Date and, in the name and at the expense of the Company or the Guarantor, as the case may be, 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 or the Guarantor 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 or the Guarantor, as the case may be, 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 Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name such 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, 27 and neither the Company, the Guarantor, the Trustee nor any agent of the Company, the Guarantor 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 or the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor 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. For the purposes of the Interest Act (Canada), if in this Indenture or in any Security a rate of interest is or is to be calculated on the basis of a period which is less than a full calendar year, the yearly rate of interest to which such rate is equivalent shall be such rate multiplied by the actual number of days in the calendar year for which such calculation is made and divided by the number of days in such period. The rates of interest set forth in this Indenture or in any Security will be calculated using the nominal rate method of calculation and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re-investment of interest. In calculating interest or fees payable under this Indenture or on or with respect to a Security for any period, unless otherwise provided, the first day of such period shall be included and the last day of such period shall be excluded. 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 28 (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 (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor 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 or the Guarantor, 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 or the Guarantor has paid or caused to be paid all other sums payable hereunder by them; and (3) the Company or the Guarantor 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. 29 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 or the Guarantor acting as the Paying Agent) as the Trustee may 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 or the Guarantor 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 and the Guarantor by the Trustee or to the Company, the Guarantor 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 an order (A) for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law; 30 (B) adjudging the Company or the Guarantor a bankrupt or insolvent or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law; (C) appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of its property; or (D) ordering the winding up or liquidation of the affairs of the Company or the Guarantor, 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 or the Guarantor of a voluntary case or proceeding under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar law to be adjudicated a bankrupt or insolvent; (B) the consent by the Company or the Guarantor to the entry of a decree or order for relief in respect of it in an involuntary case or proceeding under any applicable Federal, State or foreign 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 or the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar law, or the consent by the Company or the Guarantor to the filing of such petition; (D) the consent by the Company or the Guarantor to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of its property; (E) the making by the Company or the Guarantor of an assignment for the benefit of creditors; (F) the admission by the Company or the Guarantor in writing of its inability to pay its debts generally as they become due; or (G) the taking of corporate action by the Company or the Guarantor in furtherance of any such action; 31 or (7) the Guarantor repudiates its obligations under the Guarantees, or the Guarantees become unenforceable or invalid or are no longer in full force and effect, except as expressly contemplated herein; or (8) 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 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 the Guarantor (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 or the Guarantor 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; 32 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 and the Guarantor covenant that if (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 or the Guarantor 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 the Guarantor (or any other obligor upon the Securities), or their respective property or 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 33 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. 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. 34 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. 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. 35 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 Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights 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: 36 (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. 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 or the Guarantor. SECTION 5.15 Waiver of Usury, Stay or Extension Laws. Each of the Company and the Guarantor covenant (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 each of the Company and the Guarantor (to the extent that it may lawfully do so) hereby expressly waive 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. 37 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. 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 of the Company or any Establishment Action may be sufficiently evidenced by a Board Resolution of the Company or an Establishment Action, as the case may be; and any resolution of the Board of Directors of the Guarantor may be sufficiently evidenced by a Board of Resolution of the Guarantor; (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; 38 (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 and the Guarantor, 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; (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, the Guarantor 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 the Guarantor, as applicable, 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. 39 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 and the Guarantor 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 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, the Trustee 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, the Guarantor 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 40 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. 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 the 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 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 and the Guarantor. 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 41 such series, delivered to the Trustee, the Company and the Guarantor. 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, by the Guarantor 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, by the Guarantor 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 and the Guarantor by a Board Resolution of each of the Company and the Guarantor may remove the Trustee with respect to all Securities, or (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 or the Guarantor, by a Board Resolution of the Company or the Guarantor, as the case may be, 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), provided that, if the Company and the Guarantor appoint different successor Trustees, the Guarantor's appointment shall prevail, 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, the Guarantor and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in 42 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 or the Guarantor, as the case may be. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company, the Guarantor 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 or the Guarantor 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, the Guarantor and 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, the Guarantor 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 Guarantor, the retiring Trustee and each successor Trustee 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 43 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, the Guarantor 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 and the Guarantor 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. SECTION 6.13 Preferential Collection of Claims Against Company or the Guarantor. If and when the Trustee shall be or become a creditor of the Company or the Guarantor (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 the Guarantor (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 the related Guarantees 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 44 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 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, the Company and the Guarantor. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Company and the Guarantor. 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 the Guarantor 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. 45 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 By --------------------------------- Authorized Officer ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTOR 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 46 (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. Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted no later than 60 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, with the Company and with the Guarantor. (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 and the Guarantor. Each of the Company and the Guarantor 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. 47 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 Guarantor May Consolidate, Etc., Only on Certain Terms. The Guarantor 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 Guarantor 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 Guarantor shall be the continuing corporation; or (B) (i) the successor corporation (if other than the Guarantor) 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 Guarantor; and (2) the Guarantor 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 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 Guarantor'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 Guarantor, with the same effect as if it had been named herein as a party hereto, and the Guarantor shall thereupon be relieved of any further obligations or liabilities hereunder and upon the Securities and the Guarantor as the predecessor corporation may thereupon or at any time thereafter be dissolved, wound up or liquidated. 48 SECTION 8.03 Assignment by and Substitution of the Company. The rights and obligations of the Company under this Indenture and the Securities may be assigned or transferred (i) to another Person with which the Company is amalgamated, consolidated or merged or which acquires by conveyance, transfer, amalgamation or other operation of law any of the properties or assets of the Company; (ii) to the Guarantor or (iii) to another Subsidiary. Provided that the requirements of this Section 8.03 for such assignment or transfer shall have been met, upon any such assignment or transfer, all of the obligations of the Company under this Indenture and the Securities shall cease and the Company shall be released from all obligations under this Indenture and the Securities. In the case of any assignment other than to the Guarantor, the covenants of the Guarantor set forth in this Indenture shall remain in full force and effect or the Guarantor shall execute a new guarantee agreement containing provisions substantially the same as such covenants. Any successor to the Company shall expressly assume by supplemental indenture the due and punctual payment of the principal of and any premium and interest on all the Securities and the performance of the Company's covenants and obligations under this Indenture and the Securities. In addition, in the event the Company assigns all of its rights and obligations in respect of this Indenture and the Securities to the Guarantor, the provisions of Article XIV shall no longer apply to the Securities, but the other covenants of the Guarantor set forth in this Indenture and any other covenants of the Guarantor provided with respect to any series of Securities shall remain in full force and effect. SECTION 8.04 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 and the Guarantor, each 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: (1) to evidence the succession of another Person to the Company or the Guarantor and the assumption by any such successor of the covenants of the Company or the Guarantor herein and in the Securities and in the Guarantees; or (2) to add to the covenants of the Company or the Guarantor 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 the Guarantor; or 49 (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 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. 50 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, the Guarantor and the Trustee, the Company and the Guarantor, each 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; (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); or (4) modify or affect the obligations of the Guarantor under Article XIV in any manner adverse to the Holders. 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. 51 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, the Company and the Guarantor, to any such supplemental indenture may be prepared and executed by the Company and the Guarantor and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series. 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. 52 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 or the Guarantor 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 each of the Company and the Guarantor hereby appoint 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 or the Guarantor shall at any time act as the 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 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, the Company or the Guarantor, 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. 53 Each of the Company, the Guarantor 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 or the Guarantor, 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 or the Guarantor) 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. Each of the Company and the Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the date hereof, an Officers' Certificate, stating whether or not to the knowledge of the signers thereof the Company or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge. SECTION 10.05 Mortgage of Certain Property. For the benefit of the Holders of the Securities, if the Guarantor or any Subsidiary of the Guarantor 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 of the Guarantor in its discretion, the Guarantor 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 54 other indebtedness of the Guarantor 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 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 Guarantor; (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 Guarantor or any Subsidiary of the Guarantor 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 Guarantor or any Subsidiary of the Guarantor 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, 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; 55 (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 Guarantor 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. For the benefit of the Holders of Securities, the Guarantor will not, nor will it permit any Subsidiary of the Guarantor 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 of the Guarantor 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 Guarantor 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 Guarantor or a Subsidiary of the Guarantor 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 Guarantor 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 the Guarantor) of such property and (C) the Guarantor shall, and in any such case the Guarantor covenants that it will, within 180 days after such sale, apply an amount equal to the net proceeds of such sale to the retirement of debt of the Guarantor, or of a Subsidiary in the case of property of such Subsidiary, maturing by its terms more than one year after the date on which it was originally incurred 56 (herein called "funded debt"); provided that the Guarantor shall not be obliged to retire more than twenty-five percent (25%) of the aggregate principal amount of any series of Securities within five years from the date such Securities are issued; provided further that the amount to be applied to the retirement of funded debt of the Guarantor or of a Subsidiary shall be reduced by the amount below if, within 75 days after such sale, the Guarantor shall deliver to the Trustee an Officers' Certificate (i) stating that on a specified date after such sale the Guarantor or a Subsidiary, 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 Guarantor or a Subsidiary, 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 Guarantor or a Subsidiary, as the case may be, to the retirement of such funded debt. In the event of such a sale or transfer, the Guarantor shall deliver to the Trustee a certified copy of the resolution of the Board of Directors of the Guarantor 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 and the Guarantor 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, 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. 57 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. 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 58 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 or the Guarantor, as the case may be, shall deposit with the Trustee or with a Paying Agent (or, if the Company or the Guarantor is acting as the 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 (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. 59 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 and the Guarantor 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 or the Guarantor, as the case may be, 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, the Guarantor or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Guarantor and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company and the Guarantor 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. 60 SECTION 12.02 Satisfaction of Sinking Fund Payments with Securities. The Company or the Guarantor, as the case may be (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 or cause to be delivered 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. 61 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 and the Guarantor shall be deemed to have been discharged from their respective 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 (i) the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness of the Company represented by such Securities and the entire indebtedness of the Guarantor represented by the related Guarantees and (ii) the Company and the Guarantor shall be deemed to have satisfied all their respective other obligations under such Securities, the Guarantees 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 and the Guarantor's respective 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 and the Guarantor shall be released from their respective obligations under Section 8.01(1)(B)(i), Section 8.03, Section 10.05, Section 10.06, Section 14.01 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"). 62 For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition 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 or the Guarantor 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 63 payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, 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 or the Guarantor shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company or the Guarantor 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 or the Guarantor 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 64 after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day). (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 or the Guarantor 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 or the Guarantor 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 or the Guarantor 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 65 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. 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 and the Guarantor have 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 or the Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company or the Guarantor, as the case may be, 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. ARTICLE XIV GUARANTEES SECTION 14.01 Guarantees. The Guarantor hereby unconditionally guarantees on a senior basis to the Holders from time to time (a) the full and prompt payment of the principal of and any premium on any Security when and as the same shall become due, whether at the stated maturity thereof, by acceleration, redemption or otherwise, or in the event of default in any sinking fund payment, and (b) the full and prompt payment of any interest on any Security when and as the same shall become due, subject to any applicable grace period. Each payment by the Guarantor with respect to any Security shall be paid in the currency or currencies specified for payments on such Security as contemplated by Section 3.01 and pursuant to this Indenture. Each and every default in the payment of the principal of and any premium or interest on any Security shall give rise to a separate cause of action hereunder, and separate suits may be brought hereunder as each cause of action arises. The Guarantee hereunder constitutes a guarantee of payment and not of collection. The obligations of the Guarantor hereunder with respect to a series of Securities shall be absolute and unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same, whether or not a Guarantee is affixed to any particular Security, or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a Guarantor, and, subject to Section 8.03 and Articles IV and XIII, shall remain in full force and effect until the entire principal of and any premium and interest on the Securities of such series shall have been paid or provided for in accordance with the provisions of such series and of this Indenture, and such payment shall not be affected, modified or impaired upon the happening from time to time of any event, including 66 without limitation any of the following, whether or not with notice to, or the consent of, the Guarantor: (1) the waiver, surrender, compromise, settlement, release or termination of any or all of the obligations, covenants or agreements of the Company under this Indenture or the Securities of such series; (2) the failure to give notice to the Guarantor of the occurrence of a default or an Event of Default hereunder; (3) the waiver, compromise or release of the payment, performance or observance by the Company or the Guarantor of any or all of the obligations, covenants or agreements of either of them contained in this Indenture; (4) the extension of the time for payment of principal of any premium and interest on any Security of such series or for any other payment under this Indenture or of the time for performance of any other obligations, covenants or agreements under or arising out of this Indenture; (5) the modification or amendment (whether material or otherwise) of any obligation, covenant or agreement set forth in this Indenture or the Securities of such series; (6) the taking or the omission of any of the actions referred to in this Indenture and any of the actions under the Securities of such series; (7) any failure, omission, delay or lack on the part of the Trustee to enforce, assert or exercise any right, power or remedy conferred on the Trustee in this Indenture, or any other act or acts on the part of the Trustee or any of the Holders from time to time of the Securities of such series; (8) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment of, or other similar proceedings affecting the Guarantor or the Company, or any of the assets of any of them, or any allegation or contest respecting the validity of the Guarantee in any such proceeding; (9) to the extent permitted by law, the release or discharge by operation of law of the Guarantor from the performance or observance of any obligation, covenant or agreement contained in this Indenture; (10) to the extent permitted by law, the release or discharge by operation of law of the Company from the performance or observance of any obligation, covenant or agreement contained in this Indenture; (11) the default or failure of the Guarantor or the Trustee fully to perform any of its obligations set forth in this Indenture or the Securities of such series; or 67 (12) the invalidity of this Indenture or the Securities of such series or any part of any thereof. No set-off, counterclaim, reduction or diminution of any obligation, or any defense of any kind or nature which the Guarantor has or may have against the Trustee shall be available hereunder to the Guarantor against the Trustee to reduce the payments of the Guarantor under this Section 14.01. The Guarantor assumes responsibility for being and remaining informed of the financial condition of the Company and of all other circumstances bearing upon the risk of nonpayment of amounts owing under the Securities which diligent inquiry would reveal and agrees that the Holders of the Securities shall have no duty to advise the Guarantor of information known to any of them regarding such condition or any such circumstances. SECTION 14.02 Proceedings Against the Guarantor. In the event of a default in the payment of principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, each of the Trustee and the Holder of such Security shall have the right to proceed first and directly against the Guarantor under this Indenture without first proceeding against the Company or exhausting any other remedies which the Trustee or such Holder may have and without resorting to any other security held by it. The Trustee shall have the right, power and authority to do all things it deems necessary or advisable to enforce the provisions of this Indenture relating to the Guarantee and to protect the interests of the Holders of the Securities and, in the event of a default in payment of the principal of or any premium on any Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, call for redemption or otherwise, or in the event of a default in any sinking fund payment, or in the event of a default in the payment of any interest on any Security when and as the same shall become due, the Trustee may institute or appear in such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of its rights and the rights of the Holders, whether for the specific enforcement of any covenant or agreement in this Indenture relating to the Guarantee or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Without limiting the generality of the foregoing, in the event of a default in payment of the principal of and any premium and interest on any Security when due, the Trustee may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Guarantor and collect the monies adjudged or decreed to be payable in the manner provided by applicable law out of the property of the Guarantor, wherever situated. SECTION 14.03 Guarantees for Benefit of Holders. The Guarantees contained in this Indenture are provided by the Guarantor for the benefit of the Holders from time to time. Such provisions shall not be deemed to create any right in, or 68 to be in whole or in part for the benefit of any Person other than, the Trustee, the Guarantor, the Holders from time to time and their permitted successors and assigns. 69 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 GLOBAL FUNDING CORPORATION By: /s/ JOHN T. MILLS ------------------------------------------- John T. Mills President MARATHON OIL CORPORATION By: /s/ JOHN T. MILLS ------------------------------------------- John T. Mills Chief Financial Officer JPMORGAN CHASE BANK By: /s/ JOHN G. JONES ------------------------------------------- John G. Jones Vice President 70 STATE OF TEXAS ) ) COUNTY OF HARRIS ) On the 14th day of June, 2002, before me personally came John T. Mills, to me known, who, being by me duly sworn, did depose and say that he is President of Marathon Global Funding 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. /s/ CRISTINA ARIAS ------------------------------- Notary Public [NOTARIAL SEAL] STATE OF TEXAS ) ) COUNTY OF HARRIS ) On the 14th day of June, 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. /s/ CRISTINA ARIAS ------------------------------- Notary Public [NOTARIAL SEAL] 71 STATE OF TEXAS ) ) COUNTY OF HARRIS ) On the 14th day of June, 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 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. /s/ CASSANDRA M. EDMONDSON ------------------------------- Notary Public [NOTARIAL SEAL] 72 EX-4.2 6 h97862exv4w2.txt OFFICERS' CERTIFICATE DATED JUNE 21, 2002 EXHIBIT 4.2 MARATHON GLOBAL FUNDING CORPORATION MARATHON OIL CORPORATION OFFICERS' CERTIFICATE PURSUANT TO SECTIONS 1.02, 2.01, 3.01 AND 3.03 OF THE INDENTURE June 21, 2002 The undersigned, John T. Mills and John A. Evans, do hereby certify that they are the duly appointed President of Marathon Global Funding Corporation, a Nova Scotia unlimited liability company (the "Company") and Chief Financial Officer of Marathon Oil Corporation, a Delaware corporation (the "Guarantor"), and the Secretary of the Company, respectively. This Officers' Certificate is being executed and delivered (a) pursuant to Sections 1.02, 2.01, 3.01 and 3.03 of the Indenture, dated as of June 14, 2002 (the "Indenture"), among the Company, the Guarantor and JPMorgan Chase Bank, as Trustee, and (b) in connection with the order dated June 21, 2002 by the Company to the Trustee (the "Order") for the authentication and delivery of the Company's 6% Notes due July 1, 2012 (the "Notes"). The undersigned hereby certifies that: 1. As of June 18, 2002, the terms of the Notes (including the form of the Notes) set forth in Annex A hereto were established by an authorized committee of officers of the Company. 2. The undersigned have read Sections 1.02, 2.01, 3.01 and 3.03 of the Indenture and the definitions in the Indenture relating thereto. 3. The statements made herein are based either upon the personal knowledge of the persons making this Certificate or on information, data and reports furnished to such persons by the officers, counsel, department heads or employees of the Company who have knowledge of the facts involved. 4. The undersigned have examined the Order, and they have examined the covenants, conditions and provisions of the Indenture relating thereto. 5. In the opinion of the undersigned, they have made such examination or investigation as is necessary to enable them to express an informed opinion as to whether or not all covenants and conditions provided for in the Indenture with respect to the authentication of the Notes have been complied with. 6. In the opinion of the undersigned, all covenants and conditions precedent provided in the Indenture to the authentication and delivery by the Trustee of the Notes have been complied with. 2 IN WITNESS WHEREOF, the undersigned have executed this certificate effective as of the date set forth above. /s/ JOHN T. MILLS ------------------------------------------------ John T. Mills President, Marathon Global Funding Corporation and Chief Financial Officer, Marathon Oil Corporation /s/ JOHN A. EVANS ------------------------------------------------ John A. Evans Secretary, Marathon Global Funding Corporation ANNEX A MARATHON GLOBAL FUNDING CORPORATION 6% NOTES DUE 2012 A series of Securities are hereby established pursuant to Section 3.01 of the Indenture dated as of June 14, 2002 between Marathon Global Funding Corporation (the "Company"), Marathon Oil Corporation and JPMorgan Chase Bank (the "Trustee") relating to senior debt securities of the Company (the "Indenture") as follows: 1. Each capitalized term used but not defined herein shall have the meaning assigned to such term in the Indenture. 2. The title of such series of Securities shall be the "6% Senior Notes due 2012" (the "Notes"). The Notes will be offered pursuant to the Indenture. The price at which the Notes shall be issued is 99.174%. 3. The aggregate principal amount of the Notes that may be initially authenticated and delivered under the Indenture shall be $400,000,000 (except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 of the Indenture, and except for any Notes which, pursuant to Section 3.03 of the Indenture, shall be deemed never to have been authenticated and delivered thereunder). 4. The date on which the principal of the Notes is due and payable, unless accelerated pursuant to the Indenture, is July 1, 2012. 5. The Notes shall bear interest at the rate of 6% per annum. The date from which interest shall accrue for the Notes shall be June 21, 2002. Interest shall be payable semiannually on January 1 and July 1 of each year (each, an "Interest Payment Date"), commencing January 1, 2003, to each Person in whose name the Notes (or one or more Predecessor Securities) are registered at the close of business on the regular record date for such interest. The regular record dates for interest payable on the Notes shall be the December 15 or June 15 (as the case may be), whether or not a Business Day, immediately preceding an Interest Payment Date. Interest on the Notes shall be calculated on the basis of a 360-day year consisting of twelve 30-day months. 6. The Notes shall be issuable only in denominations of $1,000 and any integral multiple thereof. Subject to any prior conditions stated in the Indenture, the Notes shall be issued in definitive form. 7. The place or places where (a) the principal of, premium (if any) and interest on the Notes shall be payable, (b) the Notes may be surrendered for registration of transfer or for exchange and (c) notices may be given to the Company in respect of the Notes, is the Corporate Trust Office of the Trustee in New York, New York, or such other offices or A-1 agencies maintained for such purposes as the Company may designate from time to time and in accordance with the Indenture; provided that payment of interest, other than at Maturity, may be made, at the option of the Company, 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 such account shall appear in the Security Register. 8. The Notes are subject to redemption upon not less than 30 days' notice by mail, at any time, in whole or in part, at the election of the Company, at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus 25 basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the date of redemption. "Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York or Houston, Texas and on which commercial banks are open for business in New York, New York and Houston, Texas. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Notes. "Comparable Treasury Price" means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. "Independent Investment Banker" means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time. "Reference Treasury Dealer" means (1) each of Banc of America LLC and J.P. Morgan Securities Inc., and their respective successors, and two other firms that are primary U.S. Government securities dealers (each a "Primary Treasury Dealer") which the Company specifies from time to time; provided, however, that if any of them ceases to be a Primary Treasury Dealer, the Company shall substitute another Primary Treasury Dealer. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated A-2 "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date. Notice of the redemption will be mailed to each holder of the applicable series of Notes to be redeemed by first-class mail at least 30 and not more than 60 days prior to the date fixed for redemption. If fewer than all of the Notes are to be redeemed, the Trustee will select, not more than 60 days prior to the redemption date, the particular Notes or portions thereof for redemption from the outstanding Notes not previously called by such method as the Trustee deems fair and appropriate. 9. The Notes are not subject to any sinking fund or analogous provisions. The Notes will not be redeemable at the option of the Holder thereof prior to Maturity. 10. The Company will not pay additional amounts on any of the Notes to Holders in respect of any tax, assessment or governmental charge withheld or deducted. 11. The Notes may be purchased only in currency of the United States and payment of principal of, premium, (if any), and interest on the Notes will only be made in currency of the United States. 12. The Events of Default and covenants specified in the Indenture will apply to the Notes without additions or changes. 13. One hundred percent (100%) of the principal amount of the Notes will be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 of the Indenture. 14. The defeasance and covenant defeasance provisions of Article XIII of the Indenture will apply to the Notes. 15. The Notes shall be issued in the form of one or more Global Securities (the "Global Notes"). The Depository for the Global Notes shall be The Depository Trust Company, a New York corporation ("DTC'), and the Global Notes shall be registered in the name of DTC or Cede & Co., as a nominee of DTC. Except as set forth in Sections 2.03 or 3.05 of the Indenture, such Global Notes may only be transferred, in whole and not in part, to the Depository or another nominee of the Depository. A-3 16. The Trustee will initially act as the security registrar for the Notes and as the Paying Agent with respect to the Notes. 17. The Notes and the Trustee's certificate of authentication shall be substantially in the form of Exhibit 1 hereto. A-4 Exhibit 1 MARATHON GLOBAL FUNDING CORPORATION % NOTES DUE FULLY AND UNCONDITIONALLY GUARANTEED BY MARATHON OIL CORPORATION NO. 1 $ CUSIP NO. 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. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. MARATHON GLOBAL FUNDING CORPORATION, an unlimited liability company duly organized and existing under the laws of the Province of Nova Scotia, Canada (herein called the "Company," which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of Million Dollars ($ ) on , 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. 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 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. For the purposes of the Interest Act (Canada), if in this Security a rate of interest is calculated on the basis of a period which is less than a full calendar year, the yearly rate of interest to which such rate is equivalent shall be such rate multiplied by the actual number of days in the calendar year for which such calculation is made and divided by the number of days in such period. The rates of interest set forth in this Security will be calculated using the nominal rate method of calculation and will not be calculated using the effective rate method of calculation or on any other basis that gives effect to the principle of deemed re-investment of interest. In calculating interest or fees payable with respect to this Security for any period, unless otherwise provided, the first day of such period shall be included and the last day of such period shall be excluded. Payment of the principal of (and premium, if any) and interest on this Security will be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; 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. The Guarantor hereby fully and unconditionally guarantees on a senior basis to the Holders from time to time (a) the full and prompt payment of the principal of and any premium on this Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, redemption or otherwise, and (b) the full and prompt payment of any interest on this Security when and as the same shall become due, subject to any applicable grace period. 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. 2 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. 3 IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal. Dated: , . MARATHON GLOBAL FUNDING CORPORATION, as Issuer By -------------------------------------------- Name: Title: Attest: ---------------------------------------------- Name: Title: GUARANTEE Marathon Oil Corporation, a Delaware corporation unconditionally guarantees to the holder of this Security, upon the terms and subject to the conditions set forth in the Indenture referenced on the reverse hereof, (a) the full and prompt payment of the principal of and any premium on this Security when and as the same shall become due, whether at the Stated Maturity thereof, by acceleration, redemption or otherwise, and (b) the full and prompt payment of interest on this Security when and as the same shall become due, subject to any applicable grace period. MARATHON OIL CORPORATION, as Guarantor By -------------------------------------------- Paul C. Reinbolt Vice President-Finance and Treasurer Attest: ---------------------------------------------- William F. Schwind, Jr. Vice President, General Counsel and Secretary CERTIFICATE OF AUTHENTICATION 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 MARATHON GLOBAL FUNDING CORPORATION % NOTES DUE FULLY AND UNCONDITIONALLY GUARANTEED BY MARATHON OIL CORPORATION 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 June 14, 2002, (herein called the "Indenture," which term shall have the meaning assigned to it in such instrument), between the Company, as Issuer, Marathon Oil Corporation, as Guarantor 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 Guarantor, 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, initially limited in aggregate principal amount to $ . The Securities of this series are subject to redemption prior to the Stated Maturity upon not less than 30 days' notice by mail, at any time, in whole or in part, at the election of the Company, at a redemption price equal to the greater of (1) 100% of the principal amount of such Securities to be redeemed or (2) the sum of the present values of the remaining scheduled payments of principal and interest on the Securities to be redeemed (exclusive of interest accrued to the date of redemption) discounted to the date of redemption on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the then current Treasury Rate plus basis points, plus, in either case, accrued and unpaid interest on the principal amount being redeemed to the date of redemption. "Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York or Houston, Texas and on which commercial banks are open for business in New York, New York and Houston, Texas. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Securities to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such Securities. "Comparable Treasury Price" means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. 1 "Independent Investment Banker" means one of the Reference Treasury Dealers that the Company appoints to act as the Independent Investment Banker from time to time. "Reference Treasury Dealer" means each of Banc of America Securities LLC and J.P. Morgan Securities Inc., and their respective successors, and two other firms that are primary U.S. Government securities dealers (each a "Primary Treasury Dealer") which the Company specifies from time to time; provided, however, that if any of them ceases to be a Primary Treasury Dealer, the Company shall substitute therefor another Primary Treasury Dealer. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third Business Day preceding such redemption date. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the Remaining Life of the Securities to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date. Notice of the redemption will be mailed to holders of Securities by first-class mail at least 30 and not more than 60 days prior to the date fixed for redemption. If fewer than all of the Securities are to be redeemed, the Trustee will select, not more than 60 days prior to the redemption date, the particular Securities or portions thereof for redemption from the outstanding Securities not previously called by such method as the Trustee deems fair and appropriate. 2 Unless the Company defaults in payment of the redemption price, on or after the redemption date, interest will cease to accrue on the Securities or portions thereof called for redemption. 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. The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or of certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture. If an Event of Default with respect to Securities of this series shall occur and be continuing, the principal of the Securities of this series may be declared due and payable in the manner and with the effect provided for in the Indenture. The Indenture contains provisions permitting the Company, the Guarantor 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 or the Guarantor; (2) to add to the covenants of the Company or the Guarantor; (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 Guarantor and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Company, the Guarantor 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 and the Guarantor 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 3 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 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 or the Guarantor, as applicable, 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 $1,000 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. 4 Prior to due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor 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 Guarantor, 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. 5 FORM OF ASSIGNMENT ABBREVIATIONS Customary abbreviations may be used in the name of a Securityholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act). Additional abbreviations may also be used though not in the above list. --------------------- FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto --------------------- Please insert Social Security or other identifying number of assignee PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE - -------------------------------- - -------------------------------- - -------------------------------- - -------------------------------- the within Security and all rights thereunder, hereby irrevocably constituting and appointing __________________________________ attorney to transfer said Security on the books of the Company, with full power of substitution in the premises. Dated: -------------------- Notice: The signature to this assignment must correspond with the name as written on the face of the within instrument in every particular, without alteration or enlargement, or any change whatever. 6 SCHEDULE OF INCREASES OR DECREASES IN THE PRINCIPAL AMOUNT OF SECURITIES The original principal amount of this Security is Million U.S. Dollars ($ ). The following increases or decreases in the principal amount of this Security have been made:
Amount of Amount of Principal amount Signature of decrease in increase in of this authorized signatory Date of principal amount principal amount Security following of increase or of this of this such decrease Trustee or decrease Security Security (or increase) Depositary ----------- ---------------- ---------------- ------------------ --------------------
7 EX-5.1 7 h97862exv5w1.txt OPINION OF STEWART MCKELVEY STIRLING SCALES EXHIBIT 5.1 [STEWART MCKELVEY STIRLING SCALES LETTERHEAD] File Reference: NS2112-85 June 21, 2002 MARATHON OIL CORPORATION 5555 San Felipe Road Houston, TX 77056 MARATHON GLOBAL FUNDING COMPANY c/o Marathon Oil Corporation 5555 San Felipe Road Houston, TX 77056 Ladies and Gentlemen: As set forth in the Registration Statement on Form S-3 (Registration Nos. 333-90034 and 333-90034-01), as amended (the "REGISTRATION STATEMENT"), filed with the Securities and Exchange Commission (the "COMMISSION") by Marathon Oil Corporation, a Delaware corporation ("MARATHON"), and Marathon Global Funding Corporation, a Nova Scotia unlimited company ("MARATHON FUNDING"), under the Securities Act of 1933, as amended (the "ACT"), relating to unsecured debt securities of Marathon Funding (the "MARATHON FUNDING SECURITIES") fully and unconditionally guaranteed by Marathon to be issued and sold by Marathon and Marathon Funding from time to time pursuant to Rule 415 under the Act for an aggregate initial offering price not to exceed U.S. $400,000,000, certain legal matters in connection with the Securities are being passed upon for you by us. In our capacity as your special Nova Scotia counsel in the connection referred to above, we have examined (i) the Memorandum of Association and Articles of Association of Marathon Funding (together, the "CHARTER DOCUMENTS"), (ii) the Indenture dated as of June 14, 2002 among Marathon Funding, as issuer, Marathon, as guarantor, and JPMorgan Chase Bank, as trustee (the "INDENTURE"), pursuant to which the Marathon Funding Securities may be issued, and (iii) the originals, or copies certified or otherwise identified, of corporate records of Marathon Funding, certificates of public officials and of representatives of Marathon Funding, statutes and other instruments and documents as a basis for the opinions hereafter expressed. Marathon Oil Corporation June 21, 2002 Page 2 In expressing our opinion in paragraph 1 we have relied exclusively upon a certificate of status pertaining to Marathon Funding issued on behalf of the Registrar of Joint Stock Companies for the Province of Nova Scotia, dated June 13, 2002. Based upon and subject to the foregoing, we are of the opinion that: 1. Marathon Funding is an unlimited company duly incorporated and validly existing in good standing under the laws of the Province of Nova Scotia. 2. Assuming that (i) the Indenture constitutes and enforceable obligation of Marathon Funding under the laws of the State of New York as provided therein, (ii) the Marathon Funding Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of the Indenture, and (iii) the choice of the laws of the State of New York to govern the Debt Securities is bona fide, the choice of the laws of the State of New York to govern the Debt Securities will be upheld as a valid choice of law and, if specifically pleaded and proved, the laws of the State of New York will be applied by the courts of competent jurisdiction in the Province of Nova Scotia, except with respect to procedure, which will be governed by the laws of Nova Scotia; provided that such choice of law is not contrary to public policy, as that term is understood under Nova Scotia law. Based solely on our review of the Indenture and our review otherwise described above but without having any knowledge of New York law we have no reason to believe that a court of competent jurisdiction in the Province of Nova Scotia would refuse to apply New York law to govern the Debt Securities. The opinions set forth above are limited in all respects to matters of the laws of the Province of Nova Scotia. We hereby consent to the filing of this opinion of counsel as Exhibit 5.1 to Marathon's current report on Form 8-K reporting the offering of the Marathon Funding Securities. In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder. Very truly yours, STEWART MCKELVEY STIRLING SCALES /s/ STEWART MCKELVEY STIRLING SCALES EX-5.2 8 h97862exv5w2.txt OPINION OF BAKER BOTTS L.L.P. EXHIBIT 5.2 [BAKER BOTTS L.L.P. LETTERHEAD] June 21, 2002 Marathon Oil Corporation 5555 San Felipe Road Houston, Texas 77056-2723 Gentlemen: Marathon Oil Corporation, a Delaware corporation ("Marathon"), has engaged us to render to it the opinions we express below in connection with the offering of $400,000,000 aggregate principal amount of notes due July 1, 2012 (the "Marathon Funding Securities") of Marathon Global Funding Corporation, a Nova Scotia unlimited liability company ("Marathon Funding"), fully and unconditionally guaranteed by Marathon (the "Marathon Guarantees" and, together with the Marathon Funding Securities, the "Securities"), which Marathon and Marathon Funding are offering under the registration statement on Form S-3, as amended by pre-effective amendment no. 1 thereto (Reg. Nos. 333-90034 and 333-90034-01), Marathon and Marathon Funding filed with the Securities and Exchange Commission (the "SEC") under the Securities Act of 1933 (the "1933 Act"), which relates to their offering and sale of various securities under the 1933 Act's Rule 415. In this letter, "Registration Statement" means that registration statement, as amended, when it became effective under the 1933 Act. Marathon and Marathon Funding will issue the Securities under an indenture dated as of June 14, 2002 among Marathon Funding, Marathon and JPMorgan Chase Bank, as trustee, relating to the debt securities of Marathon Funding fully and unconditionally guaranteed by Marathon (the "Indenture"). For purposes of the opinions we express below, we have examined, among other agreements, instruments and documents, the following: o the restated certificate of incorporation and by-laws, each as amended to date, of Marathon; o the Registration Statement and its exhibits; o the prospectus the Registration Statement includes; o the prospectus supplement dated June 18, 2002 and filed with the SEC on June 19, 2002 under the 1933 Act's Rule 424(b)(5); o the Indenture; BAKER BOTTS L.L.P. Marathon Oil Corporation 2 June 21, 2002 o the underwriting agreement and related pricing agreement, each dated June 18, 2002 among Marathon Funding, Marathon and Banc of America Securities LLC and J.P. Morgan Securities Inc., as representatives of the several underwriters, relating to the offering and sale of the Securities (the "Underwriting Agreements"); o the resolutions of the board of directors of Marathon which authorize the issuance of the Marathon Guarantees; o corporate records of Marathon, including minute books it has furnished us; and o certificates of public officials and of representatives of Marathon. In giving these opinions, we have relied on certificates of officers of Marathon and of public officials with respect to the accuracy of the factual matters those certificates cover or contain, and we have assumed that all signatures on documents we have examined are genuine, all documents submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies conform to the original copies of those documents and those original copies are authentic. We base the opinions we express below in part on the following assumptions we have made: o the board of directors of Marathon Funding or any committee which such board has duly designated in accordance with the organizational documents of Marathon Funding and applicable law (the board or any such committees being the "Board") will have taken all corporate action necessary to: o authorize the issuance of the Marathon Funding Securities; and o approve the terms of the offering and sale of the Marathon Funding Securities; o the Indenture will have been duly authorized by Marathon Funding; o in accordance with the terms of the Indenture, the Board will have designated and established the terms of the series to which the Marathon Funding Securities belong and the Marathon Funding Securities will not include any provision that is unenforceable; and o Marathon Funding will have duly authorized the Underwriting Agreements. On the basis of and subject to the foregoing, we are of the opinion that: 1. Marathon is a corporation duly incorporated and validly existing in good standing under the laws of the State of Delaware. BAKER BOTTS L.L.P. Marathon Oil Corporation 3 June 21, 2002 2. The Marathon Funding Securities will, when issued and duly purchased and paid for in accordance with the provisions of the Underwriting Agreements, constitute legal, valid and binding obligations of Marathon Funding, entitled to the benefits of the Indenture under which they are issued and enforceable against Marathon Funding in accordance with their terms, and the related Marathon Guarantees will, when issued, constitute legal, valid and binding obligations of Marathon, enforceable against Marathon in accordance with their terms, except, in each case, as that enforcement is subject to (a) any applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other laws relating to or affecting creditors' rights generally, (b) general principles of equity, regardless of whether that enforceability is considered in a proceeding in equity or at law, and (c) any implied covenants of good faith and fair dealing. We limit the opinions we express above in all respects to matters of the laws of the State of New York and the General Corporation Law of the State of Delaware, each as in effect on the date hereof. We hereby consent to the filing of this opinion of counsel as Exhibit 5.2 to Marathon's current report on Form 8-K reporting the offering of the Securities. In giving this consent, we do not hereby admit we are in the category of persons whose written consent Section 7 of the 1933 Act requires to be filed with the Registration Statement. Very truly yours, /s/ BAKER BOTTS L.L.P. EX-8.1 9 h97862exv8w1.txt OPINION OF MACLEOD DIXON LLP EXHIBIT 8.1 [MACLEOD DIXON LLP LETTERHEAD] June 18, 2002 MARATHON OIL CORPORATION 5555 San Felipe Road Houston, Texas 77056-2723 U.S.A. Dear Sirs: RE: MARATHON GLOBAL FUNDING CORPORATION ISSUE OF U.S. $400,000,000 PRINCIPAL AMOUNT OF 6% NOTES DUE JULY 1, 2012 We have acted as special Canadian tax counsel to Marathon Oil Corporation (the "Guarantor") in connection with the issue and sale by the Marathon Global Funding Corporation (the "Company") of U.S. $400,000,000 principal amount of 6% Notes due July 1, 2012 of the Company (the "Designated Securities") fully and unconditionally guaranteed by the Guarantor, pursuant to an Underwriting Agreement dated June 18, 2002 (the "Underwriting Agreement") that is incorporated by reference into the Pricing Agreement dated June 18, 2002 (the "Pricing Agreement") by and among the Company, the Guarantor and the several Underwriters named in Schedule I of the Pricing Agreement (the "Underwriters"). The Notes are issued pursuant to the provisions of a trust indenture (the "Indenture") dated as of June 14, 2002 between the Company, the Guarantor and JP Morgan Chase Bank, as trustee (the "Trustee"). Scope of Review, Assumptions and Qualifications As such counsel, we have reviewed: (a) the Underwriting Agreement; (b) the Pricing Agreement; (c) the Indenture; Marathon Oil Company Page 2 (d) the prospectus of the Company dated June 17, 2002; and (e) the prospectus supplement of the Company dated June 18, 2002 relating to the offering of the Designated Securities filed with the SEC (the "Prospectus Supplement"). Applicable Law This opinion is rendered solely with respect to the federal laws of Canada. Opinion Based upon the foregoing, we are of the opinion that, subject to the assumptions, qualifications and limitations set forth therein: 1. The information in the Prospectus Supplement under the caption "Canadian Federal Income Tax Considerations" is correct in all material respects. At your request, this opinion of counsel is being furnished to you for filing as Exhibit 8.1 to a current report of the Company on Form 8-K (the "Form 8-K"). Pursuant to the provisions of Rule 436(a) of the rules and regulations of the Commission under the Securities Act, we hereby consent to the reference to our Firm under the caption "Legal Matters" in the Prospectus Supplement and to the filing of this opinion with the Commission as an exhibit to the Form 8-K. In giving such consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder. Yours very truly, MACLEOD DIXON LLP Per: /s/ JAMES G. MCKEE ------------------------------- James G. McKee JGM/le -----END PRIVACY-ENHANCED MESSAGE-----