-----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, N94hp81zuKh2wAdEWHLhFOhVPQiwhfT7KrSBoHq9ofF7RXPYkD5iFdnAOiPRFimy CO33bEtWeYHII/eYBHwzsQ== 0000950150-99-000068.txt : 19990128 0000950150-99-000068.hdr.sgml : 19990128 ACCESSION NUMBER: 0000950150-99-000068 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19990127 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ATLANTIC RICHFIELD CO /DE CENTRAL INDEX KEY: 0000775483 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 230371610 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: SEC FILE NUMBER: 333-71293 FILM NUMBER: 99514332 BUSINESS ADDRESS: STREET 1: 515 S FLOWER ST CITY: LOS ANGELES STATE: CA ZIP: 90071 BUSINESS PHONE: 2134863511 S-3 1 FORM S-3 1 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ------------------------ FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ ATLANTIC RICHFIELD COMPANY (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 23-0371610 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
515 SOUTH FLOWER STREET LOS ANGELES, CALIFORNIA 90071 213-486-3511 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) BRUCE G. WHITMORE, ESQ. CORPORATE SECRETARY ATLANTIC RICHFIELD COMPANY 515 SOUTH FLOWER STREET LOS ANGELES, CALIFORNIA 90071 213-486-1774 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES OF COMMUNICATIONS TO: DIANE A. WARD, ESQ. COUNSEL -- SECURITIES & FINANCE ATLANTIC RICHFIELD COMPANY 515 SOUTH FLOWER STREET LOS ANGELES, CALIFORNIA 90071 213-486-2808 ------------------------ Approximate date of commencement of proposed sale to the public: FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED BY MARKET CONDITIONS. ------------------------ If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------- PROPOSED PROPOSED MAXIMUM MAXIMUM TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT* OFFERING PRICE* REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------- Debt Securities............ $1,500,000,000** 100% $1,500,000,000 $417,000 - ------------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------------
* Estimated solely for purpose of computing the registration fee. ** Indicates issue price in the case of Debt Securities sold with original issue discount. Principal amount at maturity will be greater. The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine. - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 SUBJECT TO COMPLETION, DATED JANUARY 27, 1999 PROSPECTUS ARCO [LOGO] ATLANTIC RICHFIELD COMPANY 515 South Flower Street Los Angeles, California 90071 (213) 486-3511 DEBT SECURITIES ARCO may periodically issue debt securities on terms determined by market conditions at the time of sale. The debt securities will be general unsecured obligations of ARCO. The Company may issue debt securities in one or more series: - in various amounts up to an aggregate of $1,500,000,000; - with various maturity dates and interest payment dates; - at fixed prices, at prevailing market prices or at negotiated prices; - at par value, at a premium to par or with an original issue discount; - for U.S. dollars or foreign currencies; - represented by certificates or in book-entry form; and - subject to redemption, exchange or conversion rights by the holder or the Company. The debt securities may be sold: - directly to purchasers by the Company; - through agents selected by the Company; or - through underwriters acting alone or as part of an underwriting syndicate. This prospectus may be used to offer and sell debt securities only if accompanied by a prospectus supplement. The prospectus supplement will include the specific terms of the offering, the names of the agents and underwriters, if any, the amount they are to be paid and the amount of net proceeds to the Company. See "Forward-Looking Statements" on page 4 for discussion of certain risks that should be considered by prospective buyers of the debt securities. THESE SECURITIES HAVE NOT BEEN APPROVED BY THE SEC OR ANY STATE SECURITIES COMMISSION, NOR HAVE THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS ACCURATE OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE COMPANY MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. The date of this Prospectus is , 1999. 3 TABLE OF CONTENTS
PAGE ----- PROSPECTUS About This Prospectus....................................... 3 Where You Can Find More Information......................... 3 Forward-Looking Statements.................................. 4 The Company................................................. 4 Use of Proceeds............................................. 5 Ratio of Earnings to Fixed Charges.......................... 5 Description of Debt Securities.............................. 5 Plan of Distribution........................................ 12 Experts..................................................... 13 Legal Opinion............................................... 13
2 4 ABOUT THIS PROSPECTUS This prospectus is part of a registration statement that ARCO has filed with the SEC utilizing a "shelf" registration process. Under this shelf process, ARCO may sell any combination of the debt securities described in this prospectus in one or more offerings up to a total dollar amount of $1,500,000,000. This prospectus provides you with a general description of the debt securities the Company may offer. Each time the Company sells securities, the Company will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any prospectus supplement, together with additional information described under the heading "Where You Can Find More Information." WHERE YOU CAN FIND MORE INFORMATION ARCO files annual, quarterly and special reports, proxy statements and other information with the SEC. These SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document ARCO files at the SEC's public reference rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. The SEC allows public companies to "incorporate by reference" the information filed with the SEC, which permits companies to disclose important information to investors and shareholders by referring them to those documents that a company has incorporated by reference. The information incorporated by reference is an important part of this prospectus, and information that ARCO files with the SEC after the date of this prospectus will automatically update and supersede this information. ARCO incorporates by reference the following documents and any future filings with the SEC under Section 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 until ARCO sells all $1,500,000,000 of the debt securities (ARCO's file number with the SEC is No. 1-1196): - - Annual Report on Form 10-K for the year ended December 31, 1997; - - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998; and - - Current Reports on Form 8-K, dated January 25, 1998, June 3, 1998, June 18, 1998, June 29, 1998, September 30, 1998, November 23, 1998, January 15, 1999, January 18, 1999 and January 25, 1999. The debt securities will be governed by one of two almost identical indentures. The specific indenture will be identified in the prospectus supplement. Both indentures are filed as exhibits to this registration statement (File No. 333- ) and incorporated by reference in this prospectus. - - Indenture dated as of May 15, 1985 between ARCO and The Chase Manhattan Bank, N.A., as trustee. - - Indenture dated as of January 1, 1992 between ARCO and The Bank of New York, as trustee. You may read and copy these documents using the Internet by accessing our web site at http://www.arco.com. You may also request a paper copy of these filings at no cost, by writing or 3 5 telephoning the Company at the following address: Felicia Werts Securities Regulation Coordinator Atlantic Richfield Company 515 South Flower Street Los Angeles, California 90071 (Telephone: 213-486-1450). You should rely only on the information incorporated by reference or provided in this prospectus or any prospectus supplement. The Company is not making an offer of these debt securities in any state where the offer is not permitted. You should not assume that the information in this prospectus or any prospectus supplement is accurate as of any date other than the date on the front of those documents. FORWARD-LOOKING STATEMENTS ARCO makes statements in this prospectus and the documents incorporated by reference that are considered forward-looking statements within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934. Sometimes these statements will contain words such as "believes," "expects," "intends," "plans" and other similar words. These statements are not guarantees of ARCO's future performance and are subject to risks, uncertainties and other important factors that could cause our actual performance or achievements to be materially different from those we may project. These risks, uncertainties and factors include: - Worldwide general economic, business and regulatory conditions - The effect of crude oil and natural gas supply and demand on prices for these commodities - The effect of local political and economic conditions on ARCO's oil and gas exploration, development and production projects throughout the world - The effect of continued low crude oil prices on ARCO's ability to economically produce its existing reserves - ARCO's ability to realize before tax cost savings of $350 million in 1999 and $500 million in 2000 as a result of its global cost reduction program and to realize its proposed reductions in capital expenditures Given these uncertainties, you should not place undue reliance on these forward-looking statements. Please see the documents incorporated by reference for more information on these factors. These forward-looking statements represent ARCO's estimates and assumptions only as of the date of this prospectus. THE COMPANY The Company began operations in 1866 as the Atlantic Petroleum Storage Company. In 1966 Richfield Oil Corporation was merged into the Company. Sinclair Oil Corporation was merged into ARCO in 1969. The Anaconda Company was acquired by ARCO in 1977 and was merged into ARCO in 1981. ARCO became a Delaware corporation in 1985. ARCO is a global oil and gas enterprise. Its upstream exploration and production operations are focused in Alaska, the Gulf of Mexico (through its 82% owned subsidiary, Vastar Resources, Inc.), China, Indonesia, the United Kingdom North Sea, North Africa and Northern South America. The Alaska oil production is integrated with ARCO's refining and marketing operations in the Western United States. These include a marine fleet, two refineries and branded consumer marketing outlets located primarily in five Western states. 4 6 USE OF PROCEEDS The net proceeds from the sale of the debt securities offered hereby will be used for general corporate purposes, primarily for the replacement of short- term debt with long-term debt. The proceeds may also be used for capital expenditures, the scheduled retirement of long-term debt, and other corporate purposes. For current information on ARCO's commercial paper balances and average interest rate, see our most recent Form 10-K and 10-Q. See "Where You Can Find More Information." RATIO OF EARNINGS TO FIXED CHARGES The ratio of earnings to fixed charges for the five years ended December 31, 1998:
YEAR ENDED DECEMBER 31, - ----------------------------------- 1998 1997 1996 1995 1994 - ----- ---- ---- ---- ---- (1.35)(a) 4.24 4.28 2.43 1.95
The ratios of earnings to fixed charges were computed by dividing earnings (deficit) by fixed charges. For this purpose, earnings include income from continuing operations before income taxes, minority interest and fixed charges. Fixed charges include interest, amortization of debt expense and the estimated interest component of rentals. - --------------- (a) In 1998, the negative ratio indicates a less than one-to-one earnings coverage of fixed charges. Fixed charges of $599 million combined with an earnings deficit of $809 million per the ratio of earnings to fixed charges calculation resulted in a $1.4 billion deficiency in a one-to-one earnings coverage of fixed charges in 1998. The deficiency includes a before tax net charge of approximately $1.35 billion for asset writedowns, restructuring costs and a tax refund in the fourth quarter of 1998. DESCRIPTION OF DEBT SECURITIES The debt securities will be issued under one of two almost identical indentures: (1) an indenture dated as of May 15, 1985 between ARCO and The Chase Manhattan Bank, N.A., as trustee; or (2) an indenture dated as of January 1, 1992 between ARCO and The Bank of New York, as trustee. Each prospectus supplement will identify the indenture and the trustee for that particular series of debt securities. The terms "trustee" and "indenture" are used in this prospectus to refer to the particular trustee and indenture identified in the prospectus supplement for each series of debt securities. Because we have included only a summary of the indenture terms, you must read the indenture in full to understand every detail of the terms of the debt securities. If you would like to read the entire indenture, see "Where You Can Find More Information." GENERAL The following description of the debt securities sets forth certain general terms and provisions of the debt securities to which this prospectus and any prospectus supplement may relate. The particular terms of any series of debt securities and the extent to which the general provisions may apply to a particular series of debt securities will be described in a prospectus supplement relating to that series. The Company has summarized selected provisions of the indentures below. The summary is not complete. The forms of the indentures have been filed as exhibits to this registration statement and you should read the indentures for provisions that may be important to you. Capitalized terms used in the sum- 5 7 mary have the meanings specified in the indentures. If you would like more information on these provisions, review the indentures that we have filed with the SEC. See "Where You Can Find More Information" on how to locate the indentures. General. The indenture does not limit the aggregate principal amount of debt securities that ARCO can issue. The indenture provides for the issuance of debt securities in one or more series, in an aggregate principal amount authorized by the board of directors prior to issuance. All securities issued under the indenture will be general unsecured obligations of ARCO and will rank equally with all of ARCO's other unsecured and unsubordinated outstanding indebtedness. The indenture does not limit the amount of other unsecured indebtedness or securities that ARCO may issue. Unless otherwise indicated in a prospectus supplement, the debt securities will not benefit from any covenant or other provision that would afford holders special protection in the event of a highly leveraged transaction involving the Company, except for any protection provided by the provisions described below under "Limitation on Liens" and "Limitations on Sale and Leaseback Transactions." A prospectus supplement relating to any series of debt securities being offered will include specific terms relating to the offering. These terms will include some or all of the following: - - the designation of such debt securities; - - any limit upon the aggregate principal amount and currency or currency unit of such debt securities; - - the denominations in which such debt securities are authorized to be issued if other than $1,000; - - the percentage of their principal amount at which such debt securities will be issued; - - the date on which such debt securities will mature; - - if the debt securities are to bear interest, the rate per annum at which such debt securities will bear interest (or the method by which such rate will be determined); - - the times at which such interest, if any, will be payable or the manner of determining the same; - - the date, if any, after which such debt securities may be redeemed or purchased and the redemption or purchase price; - - the sinking fund requirements, if any; - - special United States federal income tax considerations, if any; - - information with respect to registration, transfer and exchange and payment of certificates issued in certificate form, if applicable; - - the manner in which the amount of any payments of principal and interest on the debt securities determined by reference to an index are determined; and - - any other terms of the debt securities not inconsistent with the indenture. The prospectus supplement may contain information with respect to additional covenants that may be included in the terms of a series of debt securities. No service charge will be made for any registration of transfer or exchange of the debt securities, but the Company may require the holder to pay any applicable tax or other governmental charge. LIMITATION ON LIENS Limitation on Liens. The indenture provides that, so long as any debt securi- 6 8 ties issued under the indenture are outstanding, the Company will not, and will not permit any of its Restricted Subsidiaries to, issue, assume or guarantee any indebtedness secured by a mortgage, lien, pledge or other encumbrance ("Liens") on any Restricted Property of the Company or any of its subsidiaries unless the debt securities (and any other indebtedness ranking equally with the debt securities if the Company so determines) will be secured equally and ratably with (or prior to) such indebtedness so long as such indebtedness is so secured. This restriction will not apply to: (1) Liens affecting property of a business existing at the time it is acquired or at the time it is merged into or consolidated with the Company or a subsidiary of the Company; (2) Liens on property existing at the time of acquisition of that property or incurred to secure payment of the purchase price or to secure indebtedness incurred prior to, at the time of, or within 24 months after the acquisition of that property for the purpose of financing all or part of the purchase price; (3) Liens on property to secure all or part of the cost of exploration, drilling or development of the property or all or part of the cost of improving any property or Liens to secure indebtedness to provide funds for any such activities; (4) Liens that secure only indebtedness owing by a subsidiary of the Company to the Company or to another subsidiary of the Company; (5) Liens to secure indebtedness incurred in connection with pollution control or abatement facilities or other forms of industrial revenue bond financing and Liens to government entities; and (6) any extension, renewal or replacement of any Lien referred to in clauses (1) through (5) above. The Company and any one or more of its Restricted Subsidiaries may, without securing the debt securities, issue, assume or guarantee indebtedness secured by a Lien which would otherwise be subject to the Lien restrictions. The aggregate principal amount of this indebtedness, together with all other indebtedness of the Company and its Restricted Subsidiaries so secured at any one time, may not exceed 10% of consolidated net tangible assets of the Company and its consolidated subsidiaries. Under the indenture, the following types of transactions will not be deemed to create indebtedness secured by Liens: (1) the sale or other transfer of oil, gas or other minerals in place for a period of time until, or in an amount such that, the transferee will realize therefrom a specified amount (however determined) of money or such minerals, or the sale or other transfer of any other interest in property of the character commonly referred to as a production payment; and (2) Liens required by any contract or statute in order to permit the Company or a subsidiary of the Company to perform any contract or subcontract made by it with or at the request of the United States, any state or any department, agency or instrumentality of either. The term "indebtedness" of a person means all indebtedness, whether or not represented by bonds, debentures, notes or other securities, created or assumed by that person for the repayment of money borrowed and all payment obligations of that person as 7 9 lessee under capital leases. Under the indenture, all indebtedness upon which a person customarily pays interest, if secured by a lien upon property owned by the Company or any subsidiary of the Company, will be deemed to be indebtedness of such person, although such person has not assumed or become liable for the payment of such indebtedness. All indebtedness of others guaranteed as to payment of principal by any person or in effect guaranteed by that person through a contingent agreement to purchase such indebtedness will also be deemed to be indebtedness of that person. Indebtedness of a person will not include amounts payable out of all or a portion of the oil, gas, natural gas, carbon dioxide, sulphur, helium, coal, metals, minerals, steam, timber or other natural resources produced, derived or extracted from properties owned or developed by that person. The indenture defines the term "consolidated net tangible assets" as the total amount of assets of the Company and its subsidiaries on a consolidated basis after deducting: (1) all current liabilities (excluding any which are, by their terms, extendible or renewable at the option of the Company or its subsidiaries to a time more than 12 months after the determination date); and (2) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets. The indenture defines the term "subsidiary" of the Company as a corporation more than 50% of the outstanding voting stock of which is owned, directly or indirectly, by the Company, by one or more other subsidiaries, or by the Company together with one or more other subsidiaries. For the purposes of this definition, "voting stock" means stock which ordinarily has voting power for the election of directors, whether or not any other class of stock has such voting power by reason of any contingency. The term "Restricted Property" means any of the Company's or a subsidiary's oil or gas producing properties or refining or manufacturing plants (other than such determined by the board of directors not to be a principal plant) located in the continental United States, and any shares of capital stock or indebtedness of a Restricted Subsidiary. The term "Restricted Subsidiary" means any subsidiary which owns Restricted Property unless substantially all such subsidiary's physical properties are located outside the continental United States. The indenture also provides that upon any consolidation or merger of the Company with or into any other corporation, or upon any sale or conveyance of all or substantially all of its property to any other corporation, if any of the property of the Company or of any Restricted Subsidiary would thereupon become subject to any mortgage, lien or pledge, the Company will first secure the debt securities equally and ratably with any other obligations of the Company or any Restricted Subsidiary then entitled thereto, by a direct lien on all such property prior to all liens other than any theretofore existing thereon. LIMITATION ON SALE AND LEASE-BACK The Company agrees that neither it nor any Restricted Subsidiary will enter into any Sale and Lease-Back Transaction with respect to any Restricted Property with any person (other than the Company or a subsidiary) unless either (a) the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions regarding Limitation on Liens, to incur Debt in a principal 8 10 amount equal to or exceeding the Value of such Sale and Lease-Back Transaction secured by a Lien on the property to be leased without equally and ratably securing the debt securities, or (b) the Company during or immediately after the expiration of four months after the effective date of such transaction applies to the voluntary retirement of its Funded Debt an amount equal to the greater of: (1) the net proceeds of the sale of the property leased in such transaction or (2) the fair value in the opinion of the board of directors of the leased property at the time such transaction was entered into (subject to credits for certain voluntary retirements of Funded Debt, including the debt securities). EVENTS OF DEFAULT Unless otherwise provided with respect to a particular series of debt securities, the following are events of default under the indenture with respect to any series of debt securities issued under the indenture: (1) failure to pay principal of (or premium, if any, on) any debt security of that series when due; (2) failure to pay any interest on any debt security of that series when due, continued for 30 days; (3) failure to deposit any sinking fund payment, when due, in respect of the debt securities of that series, continued for 30 days; (4) failure to perform any other covenant of the Company in the indenture (other than a covenant included in the indenture solely for the benefit of another series of debt securities), continued for 90 days after written notice as provided in the indenture; (5) certain events of bankruptcy, insolvency or reorganization; and (6) any other event of default that may be specified with respect to the debt securities of that series. If an event of default occurs with respect to any outstanding series of debt securities as described in clause (1), (2), (3) or (6) above, the principal amount of all outstanding debt securities of that particular series may be declared due and payable immediately by either: (A) the trustee; or (B) the holders of at least 25% in principal amount of that series. If an event of default occurs as described in clauses (4) or (5) above, the principal amount of all outstanding debt securities may be declared due and payable immediately by either: (A) the trustee; or (B) the holders of at least 25% in principal amount of all outstanding debt securities under the indenture. At any time after a declaration of acceleration with respect to a series of debt securities has been made, the holders of a majority in principal amount of the outstanding debt securities of the series (or holders of a majority in principal amount of all outstanding debt securities, if the acceleration has been declared by all holders) may, except in the case of an event of default described in clauses (1) and (2) above, waive such acceleration. This waiver must be made before a judgment or decree for payment of the debt securities has been obtained. There are no cross-default provisions applicable to any indebtedness outstanding under the indentures. Depending on the terms of certain other indebtedness of the Company, such as bank indebtedness, that may be outstanding from time to time, an event of default under the indenture may give 9 11 rise to cross-defaults on such other indebtedness of the Company. The indenture requires the Company to file annually with the trustee an officers' certificate as to the absence of certain defaults under the terms of the indenture. The indenture provides that the trustee may withhold notice to the holders of the debt securities of any default (except in payment of principal or interest) if it considers it in the interest of the holders of the debt securities to do so. The indenture provides that the trustee is under no obligation to exercise any of its rights under the indenture at the direction of the holders of the debt securities unless such holders shall have offered to the trustee reasonable indemnity. Subject to such provisions for indemnification, the indenture provides that the holders of a majority in principal amount of the outstanding debt securities of the particular series affected have the right to direct the proceeding for any remedy available to the trustee. MODIFICATION Modifications and amendments of the indenture may be made by the Company and the trustee with the consent of the holders of a majority in principal amount of the outstanding debt securities under the indenture affected by such change. However, without the consent of each holder affected by such change, no modification or amendment may: (1) extend the fixed maturity date of the principal of, or any installment of interest on, any debt security; (2) reduce the principal amount of, or the premium (if any) or interest on, any debt security; (3) change the currency, currencies or currency unit or units in which the principal of, or premium (if any) or interest on, any debt security is to be paid; or (4) reduce the percentage in principal amount of outstanding debt securities required to consent to a modification or amendment of the indenture or to a waiver of compliance with certain provisions of the indenture or to a waiver of certain defaults. CONSOLIDATION MERGER AND SALE OF ASSETS The Company, without the consent of any holders of outstanding debt securities, may consolidate with or merger into, or sell or convey its assets substantially as an entirety to, any other corporation, provided that: (1) the person formed by such consolidation or into which the Company is merged or which acquires such assets of the Company expressly assumes by supplemental indenture the Company's obligations on the debt securities and under the indenture; and (2) other conditions described in the indenture are met. Upon compliance with these provisions, the Company will be relieved of its obligations under the indenture and the debt securities. BOOK-ENTRY DEBT SECURITIES -- REGISTRATION, TRANSFER, EXCHANGE AND PAYMENT ARCO intends to issue each series of debt securities in "book-entry" form, represented by one or more global certificates registered in the name of The Depositary Trust Company, New York, New York (referred to as DTC), or its nominee. However, ARCO reserves the right to issue debt securities in certificate form registered in the names of the holders of the debt securities. 10 12 Ownership of beneficial interests in the global certificates representing the particular series of debt securities will be limited to persons who have accounts with DTC (participants), or persons that may hold interests through participants. DTC will keep on its computerized book-entry and transfer system a record of the principal amounts of debt securities held in the accounts of the participants. Participants, in turn, will keep records of the interests of their clients who have purchased debt securities through them. Beneficial interests in the global certificates may be shown only on, and may be transferred only through, records maintained by DTC and its participants. The laws of some states require that certain purchasers of securities take delivery of such securities only in certificate form. Such laws may limit the ability of holders of beneficial interests in the global certificates to transfer those interests to certain persons who might otherwise wish to purchase those interests. DTC has provided us the following information: DTC is a limited-purpose trust company organized under the New York Banking law, a "banking organization" within the meaning of the New York Banking Law, a member of the United States Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code and a "clearing agency" registered under the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities that its participants deposit with DTC. DTC also records the settlement among participants of securities transactions, such as transfers and pledges, in deposited securities through computerized records for participant's accounts. This eliminates the need to exchange certificates. Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC's book-entry system is also used by other organizations such as securities brokers and dealers, banks and trust companies that work through a participant. The rules that apply to DTC and its participants are on file with the SEC. DTC is owned by a number of its participants and by the New York Stock Exchange, Inc., The American Stock Exchange, Inc. and the National Association of Securities Dealers, Inc. Payments of interest and principal will be made to DTC, who in turn will credit payment to the accounts of its participants. It is DTC's current practice, upon receipt of any payment of principal or interest, to credit participants' accounts on the payment date according to their respective holdings of beneficial interests in the global certificates as shown on DTC's records. In addition, it is DTC's current practice to assign any consenting or voting rights to participants whose accounts are credited with certificates on a record date, by using an omnibus proxy. Payments by participants to holders of beneficial interests in the global certificates, and voting by participants, will be governed by the customary practices between the participants and holders of beneficial interests, as is the case with securities held for the account of customers registered in "street name." ARCO and the trustee and the paying agent will treat DTC as the sole owner of the global certificates for all purposes. Accordingly, ARCO, the trustee, and any paying agent will have no responsibility or liability: - - for the records relating to beneficial ownership interests in the global certificates; or - - for the payments of principal and interest due for the accounts of beneficial holders of interests in the global certificates. 11 13 Unless ARCO decides to issue the debt securities in certificate form, the global certificates representing a series of debt securities may not be transferred. However, a global certificate may be transferred by DTC to its nominees or successors. A series of debt securities represented by global certificates will be exchangeable for debt securities in certificate form with the same terms in authorized denominations only if: - - DTC notifies ARCO that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered under applicable law and a successor depositary is not appointed by ARCO within 90 days; or - - ARCO decides not to require all of the debt securities of a series to be represented by global certificates and notifies the Trustee of that decision. ARCO has obtained the foregoing information concerning DTC and DTC's book-entry system from DTC and other sources it believes reliable, but takes no responsibility for the accuracy of this information. CONCERNING THE TRUSTEE The indenture contains certain limitations on the right of the trustee, as a creditor of the Company, to obtain payment of claims and to realize on certain property received with respect to such claims, as security or otherwise. The trustee is permitted to engage in other transactions, except that, if it acquires any conflicting interest (as defined), it must eliminate that conflict or resign. Each of The Chase Manhattan Bank, N.A., trustee under the 1985 Indenture, and The Bank of New York, trustee under the 1992 Indenture, also acts as trustee under other outstanding series of debt securities of the Company and extends credit to the Company and its subsidiaries in the ordinary course of business. PLAN OF DISTRIBUTION The Company may sell the debt securities: (1) through underwriters or dealers, (2) directly to a limited number of institutional purchasers or to a single purchaser, or (3) through agents. The prospectus supplement with respect to a series of debt securities will set forth the terms of the offered debt securities, including the name or names of any underwriters, the purchase price, the proceeds to the Company, any underwriting discounts and other items constituting underwriters' compensation, any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which the debt securities may be listed. If underwriters are used in the sale, the debt securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the debt securities will be subject to certain conditions precedent and the underwriters will be obligated to purchase all the debt securities if any are purchased. Any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time. Debt securities may be sold directly by the Company or through agents designated by the Company from time to 12 14 time. Any agent involved in the offer or sale of debt securities in respect of which this prospectus is delivered will be named, and any commissions payable by the Company to such agent will be set forth, in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment. If so indicated in the prospectus supplement, the Company will authorize agents, underwriters or dealers to solicit offers by certain specified institutions to purchase debt securities from the Company at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject only to those conditions set forth in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts. Underwriters and agents may be entitled under agreements entered into with the Company to indemnification by the Company against certain civil liabilities, including liabilities under the Securities Act of 1933, or to contribution with respect to payments which the agents or underwriters may be required to make in respect thereof. Agents and underwriters may be customers of, engage in transactions with, or perform services for the Company in the ordinary course of business. EXPERTS PricewaterhouseCoopers LLP, formerly known as Coopers & Lybrand L.L.P., independent accountants, audited the Company's consolidated financial statements which are incorporated by reference in this prospectus in reliance on the authority of PricewaterhouseCoopers LLP, as experts in accounting and auditing. LEGAL OPINION The legality of debt securities offered hereby will be passed upon for the Company by Diane A. Ward, Esq., Counsel -- Securities and Finance of Atlantic Richfield Company, 515 South Flower Street, Los Angeles, California 90071. As of December 31, 1998, Ms. Ward owned directly or indirectly approximately 1,834 shares of Common Stock of the Company and owned directly options to purchase 900 shares of such stock. 13 15 PART II. INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. SEC registration fee........................................ $417,000 Rating Agency Fees.......................................... 300,000* Fees and expenses of the Trustee............................ 50,000* Printing and engraving expenses............................. 100,000* Accounting fees............................................. 70,000* Qualification under state securities laws................... 15,000* Miscellaneous............................................... 5,000* -------- $957,000 ========
- --------------- * Estimated and subject to future contingencies. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Reference is made to Section 25 of the By-Laws of the Company and to Section 145 of the General Corporation Law of the State of Delaware as set forth below. Section 25 of the By-Laws of the Company provides: (a) Right to Indemnification. Each person who was or is a party or is threatened to be made a party to or is involved or is threatened to be involved (as a witness or otherwise) in or otherwise requires representation by counsel in connection with any threatened, pending or completed action, suit or proceeding, or any inquiry that such person in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, and the basis of such proceeding is alleged action or inaction in an official capacity or in any other capacity while serving as such a director, officer, employee or agent, shall be indemnified and held harmless by the Company to the fullest extent authorized by the General Corporation Law of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment with reference to events occurring prior to the effective date thereof, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law permitted the Company to provide prior to such amendment), against all costs, charges, expenses, liabilities and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a director or officer (or to serve another entity at the request of the Company) and shall inure to the benefit of such person's heirs, personal representatives and estate; provided, however, that, except as provided in paragraph (b) hereof, the Company shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person against the Company only if such proceeding (or part thereof) was authorized prior to its initiation by a majority of the disinterested members of the Board of Directors of the Company. The rights to indemnification conferred in this Section shall include the right to be paid by the Company any expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the General Corporation Law of Delaware requires, payment shall be made to or on behalf of a person only upon delivery to the Company of an undertaking, by or on behalf of such person, to repay all amounts so advanced if it shall ultimately be determined that such person is not entitled to be indemnified under this Section or otherwise. The rights to indemnification conferred in this Section shall be deemed to II-1 16 be a contract between the Company and each person who serves in the capacities described above at any time while this Section is in effect. Any repeal or modification of this Section shall not in any way diminish any rights to indemnification of such person or the obligations of the Company arising hereunder. (b) Right of claimant to bring suit. If a claim under paragraph (a) of this Section is not paid in full by the Company within sixty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim. If successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting or defending such claim. In any action brought by the claimant to enforce a right to indemnification hereunder or by the Company to recover payments by the Company of expenses incurred by a claimant in a proceeding in advance of its final disposition, the burden of proving that the claimant is not entitled to be indemnified under this Section or otherwise shall be on the Company. Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because the claimant has met the applicable standard of conduct set forth in the General Corporation Law of Delaware, nor an actual determination by the Company (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant has not met such applicable standard of conduct, shall create a presumption that the claimant has not met the applicable standard of conduct or, in the case of such an action brought by the claimant, be a defense to the action. (c) Non-exclusivity of rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Company's Certificate of Incorporation, any By-Law, any agreement, a vote of Company stockholders or of disinterested Company directors or otherwise, both as to action in that person's official capacity and as to action in any other capacity by holding such office, and shall continue after the person ceases to serve the Company as a director or officer or to serve another entity at the request of the Company. (d) Insurance. The Company may maintain insurance, at its expense, to protect itself and any director or officer of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnity such persons against such expense, liability or loss under the General Corporation Law of Delaware. (e) Indemnity agreements. The Company may from time to time enter into indemnity agreements with the persons who are members of its Board of Directors and with such officers or other persons as the Board may designate, such indemnity agreements to provide in substance that the Company will indemnify such persons to the fullest extent of the provisions of this Section 25. (f) Indemnification of employees and agents of the Company. The Company may, under procedures authorized from time to time by the Board of Directors, grant rights to indemnification, and to be paid by the Company the expenses incurred in defending any proceeding in advance of its final disposition, to any employee or agent of the Company to the fullest extent of the provisions of this Section 25. Section 145 of the General Corporation Law of the State of Delaware provides: (a) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the II-2 17 corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. (b) A corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or other court shall deem proper. (c) To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made (1) by a majority vote of the directors who were not parties to such action, suit or proceeding, even though less than a quorum, or (2) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (3) by the stockholders. (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the board of directors deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to II-3 18 which those seeking indemnification or advancement of expenses may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. The Company has entered into or will enter into individual indemnity agreements with each of its present and future directors and officers embodying the provisions of Section 25 of the By-Laws a form of which indemnity agreement is included as Exhibit 99. Pursuant to Section 7 of the Underwriting Agreement, which is Exhibit 1 hereto, the underwriters named therein have agreed to indemnify the Company, its directors and certain of its officers against certain civil liabilities, including civil liabilities under the Securities Act of 1933 (the "Act"). The Company carries Directors and Officers Liability Insurance with a limit of $210 million to the extent authorized by the By-Laws of the Company and the laws of the State of Delaware. II-4 19 ITEM 16. EXHIBITS. 1 Form of proposed Underwriting Agreement. 4.1 Form of proposed Debt Securities. 4.2 Indenture, dated as of May 15, 1985, between the Company and The Chase Manhattan Bank, N.A., Trustee, relating to the securities being registered. 4.3 Indenture, dated as of January 1, 1992, between the Company and The Bank of New York, Trustee, relating to the securities being registered. 5 Opinion with consent of Diane A. Ward, Esq., Counsel -- Securities and Finance of the Company. 12 Statement of computation of ratio of earnings to fixed charges. 23.1 Consent of Diane A. Ward, Esq., Counsel -- Securities and Finance of the Company (included in Exhibit 5). 23.2 Consent of PricewaterhouseCoopers LLP. 24 Power of Attorney. 25.1 Statement of eligibility of The Chase Manhattan Bank, N.A., as Trustee. 25.2 Statement of eligibility of The Bank of New York, as Trustee. 99 Form of Indemnity Agreement.
ITEM 17. UNDERTAKINGS. A. Undertaking Pursuant to Rule 415. The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933 (the "Act"); (ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in the Registration Statement. (2) That, for the purpose of determining any liability under the Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. II-5 20 B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act Documents by Reference. The Company hereby undertakes that, for purposes of determining any liability under the Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Undertaking in Respect of Indemnification. Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers and controlling persons of the Company pursuant to the provisions described and the documents referenced under Item 15 above, or otherwise, the Company has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. D. Undertaking Pursuant to Rule 430A. The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h) under the Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-6 21 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles, State of California on the 27th day of January, 1999. ATLANTIC RICHFIELD COMPANY By: * MICHAEL E. WILEY ------------------------------------ Michael E. Wiley President and Chief Operating Officer Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- * MIKE R. BOWLIN Chairman of the Board, - ----------------------------------------------------- Chief Executive Officer Mike R. Bowlin and Director Principal executive officer * MARIE L. KNOWLES Executive Vice President - ----------------------------------------------------- and Chief Financial Marie L. Knowles Officer Principal financial officer * FRANK D. BOREN Director - ----------------------------------------------------- Frank D. Boren * JOHN GAVIN Director - ----------------------------------------------------- John Gavin * KENT KRESA Director - ----------------------------------------------------- Kent Kresa * ARNOLD G. LANGBO Director - ----------------------------------------------------- Arnold G. Langbo * DAVID T. MCLAUGHLIN Director - ----------------------------------------------------- David T. McLaughlin * JOHN B. SLAUGHTER Director - ----------------------------------------------------- John B. Slaughter
January 27, 1999 II-7 22
SIGNATURE TITLE DATE --------- ----- ---- Director * GARY L. TOOKER - ----------------------------------------------------- Gary L. Tooker * HENRY WENDT Director - ----------------------------------------------------- Henry Wendt * GAYLE E. WILSON Director - ----------------------------------------------------- Gayle E. Wilson /s/ ALLAN L. COMSTOCK Vice President and - ----------------------------------------------------- Controller Allan L. Comstock Principal accounting officer
January 27, 1999 *By /s/ ALLAN L. COMSTOCK --------------------------------- Allan L. Comstock (Attorney in fact) II-8 23 EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION ----------- ----------- 1 Form of proposed Underwriting Agreement. 4.1 Form of proposed Debt Securities. 4.2 Indenture, dated as of May 15, 1985, between the Company and The Chase Manhattan Bank, N.A., Trustee, relating to the securities being registered. 4.3 Indenture, dated as of January 1, 1992, between the Company and The Bank of New York, Trustee, relating to the securities being registered. 5 Opinion with consent of Diane A. Ward, Esq., Counsel -- Securities and Finance of the Company. 12 Statement of computation of ratio of earnings to fixed charges. 23.1 Consent of Diane A. Ward, Esq., Counsel -- Securities and Finance of the Company (included in Exhibit 5). 23.2 Consent of PricewaterhouseCoopers LLP. 24 Power of Attorney. 25.1 Statement of eligibility of The Chase Manhattan Bank, N.A., as Trustee. 25.2 Statement of eligibility of The Bank of New York, as Trustee. 99 Form of Indemnity Agreement.
EX-1 2 FORM OF PROPOSED UNDERWRITING AGREEMENT 1 EXHIBIT 1 Form of Underwriting Agreement New York, New York To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto Dear Ladies and Gentlemen: Atlantic Richfield Company, a Delaware corporation (the "Company"), proposes to sell to the underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), the principal amount of its securities identified in Schedule I hereto (the "Securities"), to be issued under an indenture (the "Indenture") dated as of [ ], between the Company and [ ], as trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives," as used herein shall each be deemed to refer to such firm or firms. 1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof. (a) If the offering of the Securities is a Delayed Offering (as specified in Schedule I hereto), paragraph (i) below is applicable and, if the offering of the Securities is a Non-Delayed Offering (as so specified), paragraph (ii) below is applicable. (i) The Company meets the requirements for the use of Form S-3 under the Securities Act of 1933 (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, and may have used a Preliminary Final Prospectus, each of which has previously been furnished to you. Such registration statement, as so amended, has become effective. The offering of the Securities is a Delayed Offering and, accordingly, it is not necessary that any further information with respect to the Securities and the offering thereof required by the Act and the rules thereunder to be included in the Final Prospectus have been included in an amendment to such registration statement prior to the Effective Date. The Company will next file with the Commission pursuant to Rules 415 and 424(b)(2) or (5) a final supplement to the form of prospectus included in such registration statement relating to the Securities and the offering thereof. As filed, such final prospectus supplement shall include all required information with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (ii) The Company meets the requirements for the use of Form S-3 under the Act and has filed with the Commission a registration statement (the file number of which is set forth in Schedule I hereto) on such Form, including a basic prospectus, for registration under the Act of the offering and sale of the Securities. The Company may have filed one or more amendments thereto, including a Preliminary Final Prospectus, each of which has previously been furnished to you. The Company will next file with the Commission either (x) a final 1 U.A. 2 prospectus supplement relating to the Securities in accordance with Rules 430A and 424(b)(1) or (4), or (y) prior to the effectiveness of such registration statement, an amendment to such registration statement, including the form of final prospectus supplement. In the case of clause (x), the Company has included in such registration statement, as amended at the Effective Date, all information (other than Rule 430A Information) required by the Act and the rules thereunder to be included in the Final Prospectus with respect to the Securities and the offering thereof. As filed, such final prospectus supplement or such amendment and form of final prospectus supplement shall contain all Rule 430A Information, together with all other such required information, with respect to the Securities and the offering thereof and, except to the extent the Representatives shall agree in writing to a modification, shall be in all substantive respects in the form furnished to you prior to the Execution Time or, to the extent not completed at the Execution Time, shall contain only such specific additional information and other changes (beyond that contained in the Basic Prospectus and any Preliminary Final Prospectus) as the Company has advised you, prior to the Execution Time, will be included or made therein. (b) On the Effective Date, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder; on the Effective Date, the Registration Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules thereunder; and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), did not or will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not, include any untrue statement of a material fact or omit 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; provided, however, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Final Prospectus (or any supplement thereto). (c) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "the Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the prospectus referred to in paragraph (a) above contained in the Registration Statement at the Effective Date including, in the case of a Non-Delayed Offering, any Preliminary Final Prospectus. "Preliminary Final Prospectus" shall mean any preliminary prospectus supplement to the Basic Prospectus which describes the Securities and the offering thereof and is used prior to filing of the Final Prospectus. "Final Prospectus" shall mean the prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the Execution Time, together with the Basic Prospectus or, if, in the case of a Non-Delayed Offering, no filing pursuant to Rule 424(b) is required, shall mean the form of final prospectus relating to the Securities, including the Basic Prospectus, included in the Registration Statement at the Effective Date. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the 2 U.A. 3 Execution Time (or, if not effective at the Execution Time, in the form in which it shall become effective) and, in the event any post-effective amendment thereto becomes effective prior to the Closing Date (as hereinafter defined), shall also mean such registration statement as so amended. Such term shall include any Rule 430A information deemed to be included therein at the Effective Date as provided by Rule 430A. "Rule 415", "Rule 424", "Rule 430A" and "Regulation S-K" refer to such rules or regulations under the Act. "Rule 430A Information" means information with respect to the Securities and the offering thereof permitted to be omitted from the Registration Statement when it becomes effective pursuant to Rule 430A. Any reference herein to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus or any Preliminary Final Prospectus or the date of filing the Final Prospectus pursuant to Rule 424(b), as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, as the case may be, deemed to be incorporated therein by reference. A "Non-Delayed Offering" shall mean an offering of securities which is intended to commence promptly after the effective date of a registration statement, with the result that, pursuant to Rules 415 and 430A, all information (other than Rule 430A Information) with respect to the securities so offered must be included in such registration statement at the effective date thereof. A "Delayed Offering" shall mean an offering of securities pursuant to Rule 415 which does not commence promptly after the effective date of a registration statement, with the result that only information required pursuant to Rule 415 need be included in such registration statement at the effective date thereof with respect to the securities so offered. Whether the offering of the Securities is a Non-Delayed Offering or a Delayed Offering shall be set forth in Schedule I hereto. 2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto, the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto, except that, if Schedule I hereto provides for the sale of Securities pursuant to delayed delivery arrangements, the respective principal amounts of Securities to be purchased by the Underwriters shall be as set forth in Schedule II hereto, less the respective amounts of Contract Securities determined as provided below. Securities to be purchased by the Underwriters are herein sometimes called the "Underwriters' Securities" and Securities to be purchased pursuant to Delayed Delivery Contracts as hereinafter provided are herein called "Contract Securities." If so provided in Schedule I hereto, the Underwriters are authorized to solicit offers to purchase Securities from the Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts"), substantially in the form of Schedule III hereto but with such changes therein as the Company may authorize or approve. The Underwriters will endeavor to make such arrangements and, as compensation therefor, the Company will pay to the Representatives, for the account of the Underwriters, on the Closing Date, the percentage set forth in Schedule I hereto of the principal amount of the Securities for which Delayed Delivery Contracts are made. Delayed Delivery Contracts are to be with institutional investors, including commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions. The Company will make Delayed Delivery Contracts in all cases where sales of Contract Securities arranged by the Underwriters have been approved by the Company but, except as the Company may otherwise agree, each such 3 U.A. 4 Delayed Delivery Contract must be for not less than the minimum principal amount set forth in Schedule I hereto and the aggregate principal amount of Contract Securities may not exceed the maximum aggregate principal amount set forth in Schedule I hereto. The Underwriters will not have any responsibility in respect of the validity or performance of Delayed Delivery Contracts. The principal amount of Securities to be purchased by each Underwriter as set forth in Schedule II hereto shall be reduced by an amount which shall bear the same proportion to the total principal amount of Contract Securities as the principal amount of Securities set forth opposite the name of such Underwriter bears to the aggregate principal amount set forth in Schedule II hereto, except to the extent that you determine that such reduction shall be otherwise than in such proportion and so advise the Company in writing; provided, however, that the total principal amount of Securities to be purchased by all Underwriters shall be the aggregate principal amount set forth in Schedule II hereto, less the aggregate principal amount of Contract Securities. 3. DELIVERY AND PAYMENT. Delivery of and payment for the Underwriters' Securities shall be made on the date and at the time specified in Schedule I hereto (or such later date not later than five business days after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Underwriters' Securities being herein called the "Closing Date"). Delivery of the Underwriters' Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by certified or official bank check or checks drawn on or by a New York Clearing House bank and payable in next day funds. Delivery of the Underwriters' Securities shall be made at such location as the Representatives shall reasonably designate at least one business day in advance of the Closing Date and payment for the Securities shall be made at the office specified in Schedule I hereto. Certificates for the Underwriters' Securities shall be registered in such names and in such denominations as the Representatives may request not less than three full business days in advance of the Closing Date. Unless the Securities are represented by global securities, the Company agrees to have the Underwriters' Securities available for inspection, checking and packaging by the Representatives in New York, New York, not later than 1:00 P.M. on the business day prior to the Closing Date. 4. AGREEMENTS. The Company agrees with the several Underwriters that: (a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Registration Statement, if not effective at the Execution Time, and any amendment thereto, shall have become effective, (ii) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b), (iii) when, prior to termination of the offering of the Securities, any amendment to the Registration Statement shall have been filed or become effective, (iv) of any request by the Commission for any amendment of the Registration Statement or supplement to the Final Prospectus or for any additional information, (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (vi) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. The Company will use its best efforts 4 U.A. 5 to prevent the issuance of any such stop order and, if issued, to obtain as soon as possible the withdrawal thereof. (b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. (c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act. (d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any amendments thereof and supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing all documents relating to the offering. (e) The Company will use reasonable efforts to arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities and will arrange for the determination of the legality of the Securities for purchase by institutional investors. (f) Until the business day following the Closing Date, the Company will not, without the consent of the Representatives, offer, sell or contract to sell, or announce the offering of, any debt securities covered by the Registration Statement or any other registration statement filed under the Act. 5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Underwriters' Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time and the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions: (a) If the Registration Statement has not become effective prior to the Execution Time, unless the Representatives agree in writing to a later time, the Registration Statement will become effective not later than (i) 6:00 P.M. New York City time, on the date of determination of the public offering price, if such determination occurred at or prior to 3:00 P.M. New York City time on such date or (ii) 12:00 Noon on the business day following the day on which the public offering price was determined, if such determination occurred after 3:00 P.M. New York City time on such date; if filing of the Final Prospectus, or any supplement thereto, is required pursuant to Rule 434(b), the Final Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 434(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have furnished to the Representatives the opinion of Diane A. Ward, Counsel -- Securities and Finance of the Company, dated the Closing Date, to the effect that: 5 U.A. 6 (i) each of the Company and its significant subsidiaries (as defined in the Act) has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business; (ii) all the outstanding shares of capital stock of each such subsidiary have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise set forth in the Final Prospectus, all outstanding shares of capital stock of such subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances; (iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on the New York Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed, or has undertaken to file, a preliminary listing application and all required supporting documents with respect to the Securities with the New York Stock Exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution; (iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect and to general principles of equity); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, in the case of the Underwriter's Securities, or by the purchasers thereof pursuant to Delayed Delivery Contracts, in the case of any Contract Securities, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture; (v) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceeding or material contracts or agreements relating to the Company fairly summarize such matters; (vi) the Registration Statement has become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, as of the Effective Date, and the Final Prospectus, as of its date and the Closing Date (other than the financial statements and other financial information contained therein as to which such counsel 6 U.A. 7 need express no opinion), complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that at the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; (vii) this Agreement and any Delayed Delivery Contracts have been duly authorized, executed and delivered by the Company; (viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in any Delayed Delivery Contracts, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained; and (ix) neither the issued and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof or of any Delayed Delivery Contracts will conflict with, result in a breach of, or constitute a default under the Certificate of Incorporation or By-Laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries. In rendering such opinion, such counsel may relay (A) as to matters involving the application of laws of any jurisdiction other than the State of New York, the general corporate law of the State of Delaware or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters; and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials. References to the Final Prospectus in this paragraph (b) include any supplements thereto at the Closing Date. (c) The Representatives shall have received from [ ], counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, any Delayed Delivery Contracts, the Registration Statement, the Final Prospectus (together with any supplement thereto) and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Executive Vice President and Chief Financial Officer, the Senior Vice President and Treasurer or the Vice President and Controller of the Company, dated the Closing Date, to the effect that the signer of such certificate has carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; 7 U.A. 8 (ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Final Prospectus, there has been no material adverse change in the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in such Final Prospectus. (e) At the Closing Date, PricewaterhouseCoopers shall have furnished to the Representatives a letter, dated as of the Closing Date, 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 published rules and regulations thereunder, and stating in effect that: (i) in their opinion the audited consolidated financial statements and financial statement schedules and any pro forma financial statements included or incorporated in the Registration Statement and the Final Prospectus and reported on by them and the unaudited Supplemental Information included or incorporated in the Registration Statement and the Final Prospectus comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations thereunder; (ii) on the basis of (w) a reading of the unaudited financial statements incorporated in the Registration Statement and the Final Prospectus and the latest unaudited financial statements made available by the Company and its subsidiaries, (x) carrying out certain specified procedures to be designated by the Representatives (but not an audit 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, (y) a reading of the minutes of the meetings of the stockholders, directors and executive and other committees of the Company, and (z) 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 the date of the most recent audited financial statements incorporated in the Final Prospectus, nothing came to their attention which caused them to believe that: (A) the unaudited financial statements, if any, incorporated in the Registration Statement and the Final Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not fairly presented in all material respects (except as permitted by Form 10-Q) in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (B) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, incorporated in the Registration Statement and Final Prospectus, there were any changes, at a specified date not more than five business days prior to the date of the letter, in the capital stock of the Company or the long-term debt of the Company and its subsidiaries, except for those changes resulting from repurchases under the Company's common stock buyback program, the exercise of stock options, issuance of stock by employee benefit plans, conversion of equity securities, cancellations of treasury stock and scheduled debt payments and amortization, as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and 8 U.A. 9 the Final Prospectus, or for the period from the date of such most recent financial statements, to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in consolidated sales and other operating revenues (including excise taxes), in income before income taxes, minority interest and cumulative effect of change in accounting principle, in provision for income taxes, or in total or per share amounts of net income, of the Company and its subsidiaries, except in all instances 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 (C) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus; (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 to the Registration Statement, including the information included or incorporated in Items 1,2,6 and 7 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Final Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation or, in certain cases, with schedules prepared by the Company; and (iv) if pro forma financial statements are included or incorporated in the Registration Statement and the Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. Reference to the Final Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Subsequent to the Execution Time or, if earlier, the date as of which information is given in the Final Prospectus, there shall not have been (i) any change or decrease of the character described in the letter referred to in paragraph (e) of this Section 5 or (ii) any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries the effect of which, in any case referred to in clause (i) or (ii) above, in the judgment of the Representatives, so materially impairs the investment quality of the Securities as to make it impractical or inadvisable to proceed with the offering or the delivery of the Securities as contemplated by such Final Prospectus. (g) Subsequent to the Execution Time, there shall not have been any decrease in the ratings of any of the Company's debt securities having a maturity of over one year ("long-term debt 9 U.A. 10 securities") by Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's Corporation ("S&P") and neither Moody's nor S&P shall have publicly announced that it has any of such long-term debt securities under consideration for possible downgrade. (h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request. (i) The Company shall have accepted Delayed Delivery Contracts in any case where sales of Contract Securities arranged by the Underwriters have been approved by the Company. If any of the conditions specified in this Section 5 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, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. 6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities. 7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Underwriter and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law 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 a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof 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, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of any Underwriter (or any person controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Final Prospectus (or the Final Prospectus as amended or supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required by the Act and the untrue statement or omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as amended or supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have. 10 U.A. 11 (b) Each Underwriter severally agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the first sentence of the last paragraph of the cover page, in the third paragraph and the first sentence of the fourth paragraph under the heading "Underwriting" and, if Schedule I hereto provides for sales of Securities pursuant to delayed delivery arrangements, in the last sentence under the heading "Delayed Delivery Arrangements" in any Preliminary Final Prospectus or the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct. (c) Promptly after receipt by an indemnified party under paragraphs (a) and (b) of this Section 7 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under paragraphs (a) and (b) of this Section 7, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party otherwise than under paragraphs (a) and (b) of this Section 7. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided, however, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under paragraphs (a) and (b) of this Section 7 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentences (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel, approved by the Representatives in the case of paragraph (a) of this Section 7, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 7 is unavailable to or insufficient to hold harmless an indemnified party for any reason, the Company and the Underwriters agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively "Losses") to which the Company and one or more of the Underwriters may be subject in such proportion as is appropriate to reflect the relative benefits received by the Company and by the 11 U.A. 12 Underwriters from the offering of the Securities; provided, however, that in no case shall any Underwriter (except as may be provided in any agreement among underwriters relating to the offering of the Securities) be responsible for any amount in excess of the underwriting discount or commission applicable to the Securities purchased by such Underwriter hereunder. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the Company and the Underwriters shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company and of the Underwriters in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the total net proceeds from the offering (before deducting expenses), and benefits received by the Underwriters shall be deemed to be equal to the total underwriting discounts and commissions, in each case as set forth on the cover page of the Final Prospectus. Relative fault shall be determined by reference to whether any alleged untrue statement or omission relates to information provided by the Company or the Underwriters. The Company and the Underwriters agree that it would not be just and equitable if contribution were determined by pro rata allocation or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), 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 fraudulent misrepresentation. For purposes of this Section 7, each person who controls an Underwriter within the meaning of the Act shall have the same rights to contribution as such Underwriter, and each person who controls the Company within the meaning of either the Act or the Exchange Act, each officer of the Company who shall have signed the Registration Statement and each director of the Company shall have the same rights to contribution as the Company, subject in each case to the applicable terms and conditions of this paragraph (d). 8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bear to the aggregate amount of Securities set opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; provided, however, that in the event the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder. 9. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market the Securities. 12 U.A. 13 10. REPRESENTATIVES AND INDEMNITIES TO SURVIVE. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancellation of this Agreement. 11. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telegraphed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at Atlantic Richfield Company, 515 South Flower Street, Los Angeles, California 90071, attention of the Senior Vice President and Treasurer. 12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers and directors and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder. 13. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York. 13 U.A. 14 If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, ATLANTIC RICHFIELD COMPANY By: ----------------------------------- Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto. [Investment Banker] By: --------------------------------- Title: --------------------------------- [Investment Banker] By: --------------------------------- Title: For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. 14 U.A. 15 SCHEDULE I Underwriting Agreement dated ______________, 1999 Registration Statement No.________________ Representatives: Title, Purchase Price and Description of Securities: TITLE: Principal amount: Purchase price (include accrued interest or amortization, if any): Sinking fund provisions: Redemption provisions: Other provisions: Closing Date, Time and Location: Type of Offering: Delayed Delivery Arrangements: 15 U.A. 16 SCHEDULE II
PRINCIPAL AMOUNT OF SECURITIES TO BE UNDERWRITER PURCHASED ----------- ------------------- $ ------------ Total..................................................... $ ============
16 U.A. 17 SCHEDULE III Delayed Delivery Contract , 19 [Insert name and address of lead Representative] Dear Ladies and Gentlemen: The undersigned hereby agrees to purchase from Corporation (the "Company"), and the Company agrees to sell to the undersigned, on , 19 , (the "Delivery Date"), $ principal amount of the Company's (the "Securities") offered by the Company's Prospectus dated , 19 , and related Prospectus Supplement dated , 19 , receipt of a copy of which is hereby acknowledged, at a purchase price of % of the principal amount thereof, plus [accrued interest] [amortization of original issue discount], if any, thereon from , 19 , to the date of payment and delivery, and on the further terms and conditions set forth in this contract. Payment of the Securities to be purchased by the undersigned shall be made on or before 11:00 AM, New York City time, on the Delivery Date to or upon the order of the Company in New York Clearing House (next day) funds, at your office or at such other place as shall be agreed between the Company and the undersigned, upon delivery to the undersigned of the Securities in definitive fully registered form and in such authorized denominations and registered in such names as the undersigned may request by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date. If no request is received, the Securities will be registered in the name of the undersigned and issued in a denomination equal to the aggregate principal amount of Securities to be purchased by the undersigned on the Delivery Date. The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date, and the obligation of the Company to sell and deliver Securities on the Delivery Date, shall be subject to the conditions (and neither party shall incur any liability by reason of the failure thereof) that (1) the purchase of Securities to be made by the undersigned, which purchase the undersigned represents is not prohibited on the date hereof, shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject, and (2) the Company, on or before the Delivery Date, shall have sold to certain underwriters (the "Underwriters") such principal amount of the Securities as is to be sold to them pursuant to the Underwriting Agreement referred to in the Prospectus and Prospectus Supplement mentioned above. Promptly after completion of such sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith. The obligation of the undersigned to take delivery of and make payment for the Securities to be sold and delivered, shall not be affected by the failure of any purchaser to take delivery of and make payment for the Securities pursuant to other contracts similar to this contract. This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other. It is understood that acceptance of this contract and other similar contracts is in the Company's sole discretion and, without limiting the foregoing, need not be on a first come, first served basis. If this contract is acceptable to the Company, it is required that the Company sign the form of acceptance below and mail or deliver one of the counterparts hereof to the undersigned at its address set forth 17 U.A. 18 below. This will become a binding contract between the Company and the undersigned, as of the date first above written, when such counterpart is so mailed or delivered. This agreement shall be governed by and construed in accordance with the laws of the State of New York. Very truly yours, -------------------------------------- (Name of Purchaser) By ----------------------------------- (Signature and Title of Officer) -------------------------------------- (Address) Accepted: Corporation, By -------------------------------------- (Authorized Signature) 18 U.A. EX-4.1 3 FORM OF PROPOSED DEBT SECURITIES 1 EXHIBIT 4.1 FORM OF PROPOSED DEBT SECURITIES Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation, 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 requested by an authorized representative of The Depository Trust Company (and any payment is made to Cede & Co. or such other entity as is requested by an authorized representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein. ATLANTIC RICHFIELD COMPANY __% DEBENTURE DUE ____ CUSIP ___________ No. $ ATLANTIC RICHFIELD COMPANY, a corporation duly organized and existing under the laws of the State of Delaware (herein called the "Company"), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $ at the office or agency of the Company in the Borough of Manhattan, The City of New York, on _____________ in such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts, and to pay interest, semiannually on _______ and _________ of each year, on said principal sum of said office or agency, in like coin or currency, at the rate per annum specified in the title hereof, from the _______ or the _________, as the case may be, next preceding the date of this Debenture to which interest on the Debentures has been paid (unless the date hereof is the date to which interest on the Debentures has been paid, in which case from the date of this Debenture), or, if no interest has been paid on the Debentures since the original issue date of this Debenture, from such original issue date, until payment of said principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date hereof is after the _________ day of any _____ or _________ and before the first day of the next succeeding _____ or _______, this Debenture shall bear interest from such _______ or _________; provided, however, that if the Company shall default in the payment of interest due on such _______ or _________, then this Debenture shall bear interest from the next preceding _______ or _________ to which interest on the Debentures has been paid, or, if no interest has been paid on the Debentures since the original issue date of this Debenture, from such original issue date. The interest so payable on any _______ or _________ will, except as provided in the Indenture dated as of [May 15, 1985] [January 1, 1992] (herein called the "Indenture") duly executed and delivered by the Company to [The Chase Manhattan Bank, N.A.]. [The Bank of New York] Trustee (herein called the "Trustee"), be paid to the person in whose name this Debenture is registered at the close of business on the _________ day of the next preceding _____ or _________, whether or not such fifteenth day is a business day, and may, at the option of the Company, be paid by check mailed to the registered address of such person. This Debenture shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture. This Debenture is one of a duly authorized issue of debentures, notes, bonds or other evidences of Indebtedness of the Company (herein called the "Securities"), of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture, to which Indenture and all indentures supplemental thereto reference is hereby made for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Trustee, the Company and the Holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase 2 or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as provided in the Indenture. This Debenture is one of a series of Securities of the Company issued pursuant to the Indenture, designated as the __% Debenture Due ____ (herein called the "Debentures") limited in aggregate principal amount to $_________. In case an Event of Default shall occur and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. The Indenture contains provisions permitting the Company and the Trustee, with the consent of the Holders of not less than 50% in aggregate principal amount at Stated Maturity of the Securities at the time outstanding of each series affected by such supplemental indenture or indentures, evidenced as provided in the Indenture, to execute supplemental indentures adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of any supplemental indenture as such provisions apply to such Securities or modifying in any manner the rights of the Holders of the Securities of each such series; provided, however, that no such supplemental indenture shall without the consent of the Holder of each outstanding Security affected thereby (i) extend the fixed maturity of any Security or reduce the rate or extend the time of payment of interest thereon or reduce the principal thereof or the time during which premium is payable thereon or make the principal thereof or any premium or interest thereon payable in any coin or currency other than that provided in the Securities, or (ii) reduce the percentage in principal amount at Stated Maturity of the outstanding Securities, 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 the Indenture or of certain defaults under and their consequences provided for in the Indenture. Any such consent or waiver by the Holder of this Debenture (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Debenture and any Debentures which may be issued in exchange or substitution hereof, irrespective of whether or not any notation thereof is made upon this Debenture or such other Debentures. No reference herein to the Indenture and no provision of this Debenture or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and premium and interest on this Debenture at the place, at the respective times, at the rate and in the coin or currency herein prescribed. The Debentures may not be redeemed prior to [ ]. The Debentures are issuable in registered form without coupons in denominations of $1,000 and any multiple of $1,000. Debentures may be exchanged for a like aggregate principal amount of Debentures of other authorized denominations, without charge except for any tax or other governmental charge imposed in relation thereto, at the office or agency of the Company in the Borough of Manhattan, The City of New York, and in the manner and subject to the limitations provided in the Indenture. Upon due presentment for registration of transfer of this Debenture at the office or agency of the Company in the Borough of Manhattan, The City of New York, a new Debenture or Debentures of authorized denominations for an equal aggregate principal amount at Stated Maturity will be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in relation thereto. Prior to due presentment for registration of transfer of this Debenture, the Company, the Trustee, any paying agent and any Debenture registrar may deem and treat the registered Holder hereof as the absolute owner of this Debenture (whether or not this Debenture shall be overdue and notwithstanding any notation of ownership or other writing hereon by anyone other than the Company, any Debenture registrar or the Trustee), for the purpose of receiving payment hereof or on account hereof, and for all 2 3 other purposes (subject to the provisions of the first paragraph hereof), and neither the Company nor the Trustee nor any paying agent nor any Debenture registrar shall be affected by any notice to the contrary. No recourse for the payment of the principal of or premium, if any, or interest on this Debenture, or for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation, covenant or agreement of the Company in the indenture or any indenture supplemental thereto or in any Debenture, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as a condition of and as part of the consideration for the issue hereof, expressly waived and released. Terms used herein which are defined in the indenture shall have the meanings assigned to them in the indenture. IN WITNESS WHEREOF, Atlantic Richfield Company has caused this instrument to be signed, manually or by facsimile, by its chairman of the Board, its President or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers, and its corporate seal to be printed engraved or otherwise reproduced hereof by facsimile or otherwise. ATLANTIC RICHFIELD COMPANY By By ---------------------- ------------------------ Senior Vice President Chairman of the Board and Treasurer Dated: -------------- This is one of the securities issued under the within-mentioned indenture. [THE CHASE MANHATTAN BANK, N.A.] as Trustee [The Bank of New York] By ------------------------------- Authorized Officer 3 EX-4.2 4 INDENTURE, DATED AS OF MAY 15, 1985 1 Exhibit 4.2 [CONFORMED COPY] ================================================================================ ATLANTIC RICHFIELD COMPANY AND THE CHASE MANHATTAN BANK, N.A., TRUSTEE _________________ INDENTURE Dated as of May 15, 1985 _________________ ================================================================================ 2 TIE-SHEET OF PROVISIONS OF TRUST INDENTURE ACT OF 1939 WITH INDENTURE DATED AS OF MAY 15, 1985, BETWEEN ATLANTIC RICHFIELD COMPANY AND THE CHASE MANHATTAN BANK, N.A., TRUSTEE;
SECTION OF ACT SECTION OF INDENTURE -------------- -------------------- 310(a)(1) and (2) ................................... 8.09 310(a)(3) and (4) ................................... Not applicable 310(b) .............................................. 8.08 and 8.10(b) 310(c) .............................................. Not applicable 311(a) and (b) ...................................... 8.13 311(c) .............................................. Not applicable 312(a) .............................................. 6.01 and 6.02(a) 312(b) and (c) ...................................... 6.02(b) and (c) 313(a) .............................................. 6.04(a) 313(b)(1) ........................................... Not applicable 313(b)(2) ........................................... 6.04(b) 313(c) .............................................. 6.04(c) 313(d) .............................................. 6.04(d) 314(a) .............................................. 6.03 314(b) .............................................. Not applicable 314(c)(1) and (2) ................................... 15.07 314(c)(3) ........................................... Not applicable 314(d) .............................................. Not applicable 314(e) .............................................. 15.07 315(a)(c) and (d) ................................... 8.01 315(b) .............................................. 7.08 315(e) .............................................. 7.09 316(a)(1) ........................................... 7.01 and 7.07 316(a)(2) ........................................... Omitted 316(a) last sentence ................................ 9.04 316(b) .............................................. 7.04 317(a) .............................................. 7.02 317(b) .............................................. 5.07 318(a) .............................................. 15.09
- ---------- This tie-sheet is not part of the indenture as executed. 3 TABLE OF CONTENTS --------------
PAGE ---- PARTIES................................................................... 1 RECITALS.................................................................. 1 ARTICLE ONE. DEFINITIONS. SECTION 1.01. Definitions................................................. 1 Authorized Newspaper........................................ 1 Board of Directors.......................................... 2 Business Day................................................ 2 Company..................................................... 2 Consolidated Net Tangible Assets............................ 2 Coupon Security............................................. 2 Event of Default............................................ 3 Fully Registered Security................................... 3 Holder...................................................... 3 Indenture................................................... 3 Interest.................................................... 3 Officers' Certificate....................................... 4 Opinion of Counsel.......................................... 4 Original Issue Date......................................... 4 Original Issue Discount Security............................ 4 Person...................................................... 4 Place of Payment............................................ 5 Principal Office of the Trustee............................. 5 Registered Coupon Security.................................. 5 Registered Holder........................................... 5 Registered Security......................................... 5
4 ii
PAGE ---- Responsible Officer......................................... 5 Restricted Property......................................... 5 Restricted Subsidiary....................................... 6 Security or Securities Outstanding.......................... 6 Stated Maturity............................................. 7 Subsidiary.................................................. 7 Trustee..................................................... 8 Trust Indenture Act of 1939................................. 8 Unregistered Security....................................... 8 ARTICLE TWO. THE SECURITIES AND SECURITY FORMS. SECTION 2.01. Amount Unlimited; Issuable in Series ....................... 8 SECTION 2.02. Form of Securities and of Trustee's Certificate of Authentication.............................. .......... 10 SECTION 2.03. Denomination, Authentication and Dating of Securities....... 11 SECTION 2.04. Execution of Securities..................................... 12 SECTION 2.05. Registration, Registration of Transfer and Exchange......... 13 SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities............. 15 SECTION 2.07. Temporary Securities........................................ 16 SECTION 2.08. Cancellation of Securities Paid, etc........................ 17 ARTICLE THREE. REDEMPTION OF SECURITIES. SECTION 3.01. Applicability of Article.................................... 17 SECTION 3.02. Notice of Redemption; Selection of Securities............... 18 SECTION 3.03. Payment of Securities Called for Redemption................. 19
5 iii ARTICLE FOUR. SINKING FUNDS.
PAGE ---- SECTION 4.01. Applicability of Article.................................... 20 SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with Securities................................................ 20 SECTION 4.03. Redemption of Securities for Sinking Fund................... 20 ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. Payment of Principal, Premium and Interest.................. 22 SECTION 5.02. Offices for Notices and Payments, etc....................... 22 SECTION 5.03. Limitation on Liens......................................... 23 SECTION 5.04. Limitation on Sale and Lease-Back........................... 25 SECTION 5.05. Definition of "Value........................................ 26 SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office ......... 26 SECTION 5.07. Provision as to Paying Agent................................ 26 SECTION 5.08. Certificate to Trustee...................................... 28 ARTICLE SIX. HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. Holders Lists .............................................. 28 SECTION 6.02. Preservation and Disclosure of Lists ....................... 29 SECTION 6.03. Reports by the Company ..................................... 30 SECTION 6.04. Reports by the Trustee ..................................... 31 ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT. SECTION 7.01. Events of Default .......................................... 33 SECTION 7.02. Payment of Securities on Default; Suit Therefor ............ 36 SECTION 7.03. Application of Moneys Collected by Trustee ................. 38 SECTION 7.04. Proceedings by Holders ..................................... 39
6 iv
PAGE ---- SECTION 7.05. Proceedings by Trustee ................................... 40 SECTION 7.06. Remedies Cumulative and Continuing ....................... 41 SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Holders ..................................... 41 SECTION 7.08. Notice of Defaults ....................................... 42 SECTION 7.09. Undertaking to Pay Costs ................................. 43 ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.01. Duties and Responsibilities of Trustee ................... 43 SECTION 8.02. Reliance on Documents, Opinions, etc. .................... 45 SECTION 8.03. No Responsibility for Recitals, etc. ..................... 46 SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities .... 46 SECTION 8.05. Moneys to be Held in Trust ............................... 46 SECTION 8.06. Compensation and Expenses of Trustee ..................... 46 SECTION 8.07. Officers' Certificate as Evidence ........................ 47 SECTION 8.08. Conflicting Interest of Trustee .......................... 47 SECTION 8.09. Eligibility of Trustee ................................... 54 SECTION 8.10. Resignation or Removal of Trustee ........................ 54 SECTION 8.11. Acceptance by Successor Trustee .......................... 56 SECTION 8.12. Succession by Merger, etc. ............................... 58 SECTION 8.13. Limitation on Rights of Trustee as a Creditor ............ 58 ARTICLE NINE. CONCERNING THE HOLDERS. SECTION 9.01. Action By Holders ........................................ 63 SECTION 9.02. Proof of Execution by Holders ............................ 64 SECTION 9.03. Who Deemed Absolute Owners ............................... 64 SECTION 9.04. Company-Owned Securities Disregarded ..................... 65 SECTION 9.05. Revocation of Consents; Future Holders Bound ............. 66
7 v ARTICLE TEN. HOLDERS' MEETINGS.
PAGE ---- SECTION 10.01. Purposes of Meetings ..................................... 66 SECTION 10.02. Call of Meetings by Trustee .............................. 67 SECTION 10.03. Call of Meetings by Company or Holders ................... 67 SECTION 10.04. Qualification for Voting ................................. 68 SECTION 10.05. Regulations .............................................. 68 SECTION 10.06. Voting ................................................... 69 SECTION 10.07. No Delay of Rights by Meeting ............................ 70 ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. Supplemental Indentures without Consent of Holders ........ 70 SECTION 11.02. Supplemental Indentures with Consent of Holders ........... 72 SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures .................................. 73 SECTION 11.04. Notation on Securities .................................... 73 SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee ........................................ 73 ARTICLE TWELVE. CONSOLIDATION, MERGER AND SALE. SECTION 12.01. Company May Consolidate, etc., on Certain Terms ........... 74 SECTION 12.02. Securities to be Secured in Certain Events ................ 74 SECTION 12.03. Successor Corporation to be Substituted ................... 75 SECTION 12.04. Opinion of Counsel to be Given Trustee .................... 75 ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE. SECTION 13.01. Discharge of Indenture .................................... 76 SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee ........... 76 SECTION 13.03. Paying Agent to Repay Moneys Held ......................... 77 SECTION 13.04. Return of Unclaimed Moneys ................................ 77
8 vi ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
PAGE ---- SECTION 14.01. Indenture and Securities Solely Corporate Obligations ..... 77 ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. Provisions Binding on Company's Successors ................ 78 SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders ... 78 SECTION 15.03. Official Acts by Successor Corporation .................... 78 SECTION 15.04. Addresses for Notices, etc. ............................... 78 SECTION 15.05. Notices to Holders; Waiver ................................ 79 SECTION 15.06. New York Contract ......................................... 80 SECTION 15.07. Evidence of Compliance with Conditions Precedent .......... 80 SECTION 15.08. Legal Holidays ............................................ 80 SECTION 15.09. Trust Indenture Act to Control ............................ 81 SECTION 15.10. No Security Interest Created .............................. 81 SECTION 15.11. Table of Contents, Headings, etc. ......................... 81 SECTION 15.12. Execution in Counterparts ................................. 81 SECTION 15.13. Acceptance of Trust ....................................... 81
9 1 INDENTURE, dated as of May 15, 1985, between ATLANTIC RICHFIELD COMPANY, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and THE CHASE MANHATTAN BANK, N.A., a national banking association (the "Trustee"). RECITAL 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 unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities"), as provided herein. AGREEMENT For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows: ARTICLE ONE. DEFINITIONS. SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended, (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Indenture. Authorized Newspaper: The term "Authorized Newspaper" shall mean a newspaper of general circulation printed in the English language and customarily published on 10 2 each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are authorized hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or any committee of such Board duly authorized to act for such Board. Business Day: The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a legal holiday for banking institutions in The City of New York. Company: The term "Company" shall mean Atlantic Richfield Company, a Delaware corporation, and subject to the provisions of Article Twelve shall include its successors and assigns. Consolidated Net Tangible Assets: The term "Consolidated Net Tangible Assets" shall mean the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed), and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the most recent balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles. Coupon Security: The term "Coupon Security" shall mean any Security authenticated and delivered with one or more interest coupons appertaining thereto. 11 3 Event of Default: The term "Event of Default" shall mean any event specified in Section 7.01, continued for the period of time, if any, and after the giving of the notice, if any, therein designated. Fully Registered Security: The term "Fully Registered Security" shall mean any Security registered as to principal and interest, if any. Holder: The term "Holder," "Holder of Securities," or other similar terms, when used with respect to any Security shall mean a bearer of an Unregistered Security or a Registered Holder of a Registered Security and when used with respect to any coupon, means the bearer thereof. Indenture: The term "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented, and shall include the form and terms of particular series of Securities established as contemplated hereunder, provided, however, that if at any time more than one Person is acting as Trustee under this instrument, "Indenture" shall mean with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 2.01, exclusive, however, of any provisions or terms which relate solely to one or more series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party. Interest: The term "interest" when used with respect to any series of non-interest bearing Securities, shall mean interest payable after maturity. 12 4 Officers' Certificate: The term "Officers' Certificate" shall mean a certificate signed by the Chairman of the Board of Directors, the President, a Chief Operating Officer, the Chief Corporate Officer, a Vice Chairman of the Board of Directors, or one of its Vice Presidents and by its Treasurer, one of its Assistant Treasurers, the Secretary, an Assistant Secretary, the Controller or an Assistant Controller of the Company. If applicable, each certificate shall include the statements provided for in Section 15.07 if and to the extent required by the provisions of such Section. Such certificate shall also mean a certificate of one of the above officers approving the form, terms and conditions of Securities of a particular series pursuant to Section 2.01. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of, or of counsel to the Company, or may be other counsel. Each such opinion shall include the statements provided for in Section 15.07 if, and to the extent, required by the provisions of such Section. Original Issue Date: The term "original issue date" of any Security (or portion thereof) shall mean the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. Original Issue Discount Security: The term "Original Issue Discount Security" shall mean 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 7.01. Person: The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. 13 5 Place of Payment: The term "Place of Payment" for a series of Securities shall mean the Place or Places of Payment designated for each series pursuant to Section 2.01(5). Principal Office of the Trustee: The term "Principal Office of the Trustee," or other similar term, shall mean the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business shall be administered and which on the date hereof is at One New York Plaza, New York, New York 10081 (except that with respect to presentation of Securities for payment and transfer, such term shall mean the office or agency of the Trustee in said city at which at any particular time its corporate agency business shall be conducted). Registered Coupon Security: The term "Registered Coupon Security" shall mean any Coupon Security registered as to principal only. Registered Holder: The term "Registered Holder," when used with respect to a Registered Security, shall mean the person in whose name such Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof. Registered Security: The term "Registered Security" shall mean any Security registered on the books of the Company. Responsible Officer: The term "Responsible Officer" shall mean any officer to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. Restricted Property: The term "Restricted Property" shall mean: (a) any property interest owned by the Company or a Subsidiary in land located in the continental United States of America (which for the 14 6 purposes hereof shall include any property located off the coast of the continental United States of America on which the Company or any Subsidiary conducts operations pursuant to leases, rights or other authorizations from the United States of America or any state thereof located within the continental United States of America) and classified by such owner as productive of crude oil, natural gas or other petroleum hydrocarbons in paying quantities; (b) any refining plant or manufacturing plant owned by the Company or a Subsidiary and located in the continental United States of America, except (1) related facilities which in the opinion of the Board of Directors are transportation or marketing facilities, and (2) a refining plant or manufacturing plant which in the opinion of the Board of Directors is not a principal plant of the Company and its Subsidiaries; and (c) any shares of capital stock or indebtedness of a Restricted Subsidiary. Restricted Subsidiary: The term "Restricted Subsidiary" shall mean any Subsidiary which owns any Restricted Property, except a Subsidiary substantially all the physical properties of which are located outside the continental United States of America. Security or Securities outstanding: The terms "Security" or "Securities" shall have the meaning stated in the recital of this Indenture and shall mean any Security or such Securities, as the case may be, authenticated and delivered pursuant to this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this instrument, "Securities" with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the recital and shall more particularly mean Securities authenticated and delivered pursuant to this instrument, exclusive of Securities of any series as to which such Person is not Trustee. The term "outstanding," when used with reference to Securities or Securities of any series shall, subject to the provisions of Section 9.04, mean, as of any particular time, all such Securities authenticated and delivered by the Trustee pursuant to this Indenture, except: 15 7 (a) such Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) such Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as provided in Article Three, or provision satisfactory to the Trustee shall have been made for mailing such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.06 except to the extent that a bona fide holder in due course of any such Securities shall have presented proof satisfactory to the Trustee that such holder is a bona fide holder in due course of any such Securities. In determining whether the Holders of the requisite principal amount of outstanding Securities of a series have given any request, demand, authorization, direction, notice, consent, or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof determined in accordance with Section 7.01. Stated Maturity: The term "Stated Maturity" when used with respect to any Security or any installment of interest thereon shall mean the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable. Subsidiary: The term "Subsidiary" shall mean any corporation at least a majority of the outstanding securities of which having ordinary voting power to elect a majority of the board of directors of such corporation (whether or not any other class of securities has or might have voting power by reason of the 16 8 happening of a contingency) is at the time owned or controlled directly or indirectly by the Company or one or more Subsidiaries or by the Company and one or more Subsidiaries. Trustee: The term "Trustee" shall mean The Chase Manhattan Bank, N.A., until another or a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean and include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean only the Trustee with respect to the Securities of that series. Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as it was in force at the date of execution of this Indenture, except as provided in Section 11.03. Unregistered Security: The term "Unregistered Security" shall mean any Security or temporary bearer Security not registered as to principal. ARTICLE TWO. THE SECURITIES AND SECURITY FORMS. SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. Securities may be issued in one or more series. The terms and conditions listed below, as applicable, of any series of Securities shall be established (i) in an indenture supplemental hereto, (ii) in a resolution of the Board of Directors or (iii) by the certificate of an officer of the Company pursuant to a resolution of the Board of Directors: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of all other series); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this 17 9 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 Sections 2.05, 2.06, 2.07, 3.03 or 11.04): (3) the date or dates on which the principal and premium, if any, of the Securities of the series are payable; (4) the rate or rates at which the Securities of the series shall bear interest, if any, or the formula by which interest shall be calculated, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders thereof to whom interest is payable; (5) the place or places where the principal of, and premium, if any, and any interest on Securities of the series shall be payable (herein called the "Place of Payment"); provided, however, that payment of principal, premium, if any, and interest with respect to Registered Securities 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 on the registry books of the Company, as defined in Section 2.05; (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (7) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (9) if other than the principal amount at Stated Maturity thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity 18 10 thereof pursuant to Section 7.01 or provable in bankruptcy pursuant to Section 7.02 or the method by which such portion of the principal amount shall be determined; (10) any Events of Default with respect to the Securities of a particular series, if not set forth herein; (11) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture); and (12) the securities will be issued in such form and such manner so that the Company will not be prohibited from receiving a deduction for interest paid thereon under Section 163(f) of the Internal Revenue Code of 1954, as amended. All Securities of any series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of actual time or times of authentication and delivery or maturity of the Securities of such series. All Securities of the same series shall be substantially identical except as to denomination and except as may otherwise be provided in (i) an indenture supplemental hereto, (ii) a resolution of the Board of Directors or (iii) a certificate of an officer of the Company pursuant to a resolution of the Board of Directors. SECTION 2.02. Form of Securities and of Trustee's Certificate of Authentication. The Securities of each series, the appurtenant coupons, if any, and the certificates of authentication thereon shall be in substantially the form as shall be established as provided in Section 2.01 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 any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may be determined consistently herewith by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any. The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of such Securities and coupons, if any. 19 11 The form of Trustee's certificate of authentication shall be as follows: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities issued under the within-mentioned Indenture. THE CHASE MANHATTAN BANK, N.A., as Trustee By______________________________________ Authorized Officer SECTION 2.03. Denomination, Authentication and Dating of Securities. The Securities of each series may be issued as registered Securities or unregistered Securities, as provided in the terms of such Securities and shall be issuable in the denominations of $1,000 and any integral multiple of $1,000, or such other denominations as authorized as provided in Section 2.01. Each Security shall be dated as of the date of its authentication. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article Two, the Trustee shall thereupon authenticate and deliver said Securities to or upon the written order of the Company, signed by the Chairman of the Board, its President, a Chief Operating Officer, the Chief Corporate Officer, a Vice Chairman of the Board of Directors or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers. 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 8.01, shall be fully protected in relying upon: (1) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by the certificate of an 20 12 officer of the Company pursuant to general authorization of the Board of Directors, an Officers' Certificate setting forth the action taken pursuant to such authorization; (2) an executed supplemental indenture, if any; (3) an Officers' Certificate delivered in accordance with Section 15.07; and (4) an Opinion of Counsel which shall state: (a) that the form of such Securities has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors in accordance with Section 2.02 and in conformity with the provisions of this Indenture; (b) that the terms of such Securities have been established in accordance with Section 2.01 and in conformity with the other provisions of this Indenture; (c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and (d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or vice presidents shall determine that such action would expose the Trustee to personal liability to existing Holders. SECTION 2.04. Execution of Securities. The Securities, and any coupons appertaining thereto, shall be signed in the name and on behalf of the Company manually or by facsimile by its Chairman of the Board of 21 13 Directors, its President, a Chief Operating Officer, the Chief Corporate Officer, a Vice Chairman of the Board of Directors or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed manually by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. In case any officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Company; and any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Securities or coupons, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer. SECTION 2.05. Registration, Registration of Transfer and Exchange. The Company shall keep or cause to be kept a register (herein sometimes referred to as the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. Any such register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers shall be available for inspection by the Trustee at the office or agency to be maintained by the Company as provided in Section 5.02. Upon surrender of any Registered Security of any series for registration of transfer at the office or agency of the Company to be maintained as provided in Section 5.02, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of such series of any 22 14 authorized denominations and of a like aggregate principal amount and Stated Maturity. At the option of the Holder thereof, Securities of a series whether Registered or Unregistered, which by their terms are registrable as to principal only or as to principal and interest, may be exchanged for Registered Coupon Securities or Fully Registered Securities of such series, as may be issued by the terms thereof. At the option of the Holder thereof, Securities of a series, whether Registered or Unregistered, which by their terms provide for the issuance of Unregistered Securities, may be exchanged for Unregistered Securities of such series. Securities so issued in exchange for other Securities shall be of any authorized denomination and of like principal amount and Stated Maturity and shall be issued upon surrender of the Securities for which they are to be exchanged and, in the case of Coupon Securities, together with all unmatured coupons and all matured coupons in default appertaining thereto, at the office of the Company provided for in Section 5.02 and upon payment, if the Company shall require, of charges provided herein. Whenever any Securities are so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making such exchange is entitled to receive. Upon presentation for registration of any Unregistered Security of any series which by its terms is registrable as to principal, at the office or agency of the Company to be maintained as provided in Section 5.02, such Security shall be registered as to principal in the name of the Holder thereof and such registration shall be noted on such Security. Any Security so registered shall be transferable on the registry books of the Company, upon presentation of such Security at such office or agency for similar notation thereon, but such Security may be discharged from registration by being in like manner transferred to bearer, whereupon transferability by delivery shall be restored. Unregistered Securities shall continue to be subject to successive registrations and discharges from registration at the option of the Holders thereof. Unregistered Securities shall be transferable by delivery. Registration of any Coupon Security shall not affect the transferability by delivery of the coupons appertaining thereto which shall continue to be payable to bearer and transferable by delivery. 23 15 All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or 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 duly executed, by the Holder thereof or his attorney duly authorized in writing. Unless otherwise provided in the Securities to be transferred or exchanged, 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 relation thereto. The Company shall not be required (i) to issue, register the transfer of or exchange any Securities of any series for a period of 15 days next preceding any selection of Securities of such series to be redeemed, or (ii) to register the transfer or exchange of any Securities so selected for redemption in whole or in part except, in the case of any Security to be redeemed in part, the portion thereof not to be so redeemed. SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security or any coupon appurtenant to a Coupon Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon written authorization or request of any officer of the Company, the Trustee shall authenticate and deliver, a new Security (in the case of a Coupon Security, with coupons corresponding to the coupons appertaining to the mutilated, destroyed, lost or stolen Security or the Security with respect to which a coupon shall have become mutilated, destroyed, stolen or lost) of the same series and of like tenor and principal amount at Stated Maturity bearing a number not contemporaneously outstanding. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. In every case of 24 16 mutilation, the applicant shall surrender to the Trustee, the mutilated Security or the Security to which the mutilated coupon appertains, in the case of a Coupon Security, with all coupons (including any mutilated coupons) appertaining thereto. Upon the issuance of any substituted Security, 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 connected therewith. In case any Security or coupon which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security or coupon, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security or coupon and of the ownership thereof. Every substituted Security, and in the case of Coupon Securities, its appurtenant coupons, issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Security or coupon of that series is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security or coupon of that series shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities and coupons of that series duly issued hereunder. All Securities and coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.07. Temporary Securities. Pending the preparation of definitive Securities of any series the Company may execute and the Trustee shall authenticate, and deliver printed or lithographed temporary Securities. Temporary Securities shall be issuable in any authorized denomination, and 25 17 substantially in the form of the definitive Securities of that series, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security of any series shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities of that series. Without unreasonable delay, the Company will execute and deliver to the Trustee definitive Securities of that series and thereupon any or all temporary Securities of that series may be surrendered in exchange therefor, at the Principal Office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount at Stated Maturity of definitive Securities. Such exchange shall be made by the Company at its own expense and without any charge therefor except that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of that series authenticated and delivered hereunder. SECTION 2.08. Cancellation of Securities Paid, etc. Securities of any series surrendered for the purpose of payment, redemption, exchange or registration of transfer and all coupons surrendered for payment, shall, if surrendered to the Company or any paying agent, be surrendered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities or coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture or of such series of Securities. The Trustee shall destroy cancelled Securities or coupons and deliver a certificate of such destruction to the Company. If the Company shall acquire any of the Securities or coupons, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities or coupons unless and until the same are surrendered to the Trustee for cancellation. ARTICLE THREE. REDEMPTION OF SECURITIES. SECTION 3.01. Applicability of Article. The Company may reserve the right to redeem and pay, prior to Stated Maturity, all or any part of the 26 18 Securities of any series, either by optional redemption. sinking fund or otherwise, by provision therefor in the Security for such series established pursuant to Sections 2.01 and 2.02. Redemption of Securities of any series shall be made in accordance with the terms of such Securities and, to the extent that this Article does not conflict with such terms, in accordance with this Article. SECTION 3.02. Notice of Redemption; Selection of Securities. In case the Company shall desire to exercise the right to redeem all or any part of the Securities of a series in accordance with their terms, it shall fix a date for redemption and shall mail a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to each Holder of a Registered Security to be redeemed as a whole or in part at his address as the same appear on the registry books of the Company and, if Unregistered Securities are to be redeemed, shall publish a notice of redemption at least 30 and not more than 60 days prior to the date fixed for redemption in an Authorized Newspaper in the Place of Payment. If mailed in the manner herein provided, the notice shall be conclusively presumed to have been duly given, whether or not any such Holder receives such notice. Any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Each such notice of redemption shall specify the date fixed for redemption, the redemption price, the place where such Securities are to be surrendered for payment of the redemption price, which shall be the office or agency of the Company in each Place of Payment, that payment will be made upon presentation and surrender of such Securities and all coupons appertaining thereto, if any, that accrued interest, if any, to the redemption date will be paid as specified in said notice, and that on and after said date, interest thereon or on the portions thereof to be redeemed will cease to accrue. In case the redemption is on account of a sinking fund, said notice shall so specify. If less than all the outstanding Securities of a series are to be redeemed, the notice of redemption shall specify the numbers of the Securities of that series to be redeemed. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of that series in the principal amount and Stated Maturity equal to the unredeemed portion thereof will be issued. 27 19 If fewer than all the Securities of a series are to be redeemed, the Company shall give the Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal amount at Stated Maturity of Securities to be redeemed, and the Trustee shall select from the Securities outstanding in such manner as in its sole discretion it shall deem appropriate and fair the Securities of that series or portions thereof to be redeemed. Securities of a series may be redeemed in part only in multiples of $1,000, except as otherwise set forth in the form of Security to be redeemed. Any notice of redemption to be mailed by the Company pursuant to this Section 3.02 may be mailed, at the Company's direction, by the Trustee in the name and at the expense of the Company. SECTION 3.03. Payment of Securities Called for Redemption. If notice of redemption has been mailed or published, as the case may be as above provided, the Securities or portions of Securities of a series with respect to which such notice has been mailed or published shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with accrued interest to the redemption date and on and after said date (unless the Company shall default in the payment of such Securities at the applicable redemption price, together with accrued interest, if any, to said date) any interest on the Securities or portions of Securities of any series so called for redemption shall cease to accrue, and such Securities and portions of Securities of any series shall be deemed not to be outstanding hereunder and shall not be entitled to any benefit under this Indenture except to receive payment of the redemption price, together with accrued interest, if any, to the date fixed for redemption. On the redemption date specified in the notice of redemption, the Company shall deposit with the Trustee or with one or more paying agents an amount of money, in immediately available funds, sufficient to redeem on the redemption date all the Securities so called for redemption at the applicable redemption price, together with accrued interest, if any, to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, the said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with accrued interest, if any, to the date fixed for redemption. 28 20 Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee, upon the written request or order of any officer of the Company, shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of such series, of authorized denominations in aggregate principal amount and Stated Maturity equal to the unredeemed portion of the Security so presented. ARTICLE FOUR. SINKING FUNDS. SECTION 4.01. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Securities of that 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; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly. SECTION 4.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, 29 21 the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, 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 of that series pursuant to Section 4.02, which Securities will accompany such certificate, if not theretofore delivered, and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default with respect to such series has occurred and is continuing. Any mandatory or optional sinking fund payment or payments made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $50,000 (or a lesser sum if the Company shall so request) with respect to Securities of any particular series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made prior to a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Securities at the redemption price specified in such Securities for operation of the sinking fund together with accrued interest to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 4.03. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to such Securities, and not held for the payment or redemption of particular Securities, shall be applied by the Trustee, to the payment of the principal of the Securities of that series at maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in the penultimate paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03. 30 22 On each sinking fund payment date, the Company shall pay to the Trustee in immediately available funds a sum equal to all accrued interest to the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 4.03. The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail or publish any notice of redemption of such Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any such Securities shall theretofore have been mailed or published in accordance with the provisions hereof, the Trustee shall redeem Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article Four. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all Securities of such series; provided, however, that in case such default or Event or Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Securities on which such moneys may be applied pursuant to the provisions of this Section 4.03. ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of the Securities that it will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on the Securities of that series in accordance with the terms thereof and this Indenture and will comply with all other forms, agreements and conditions contained in or made in this Indenture for the benefit of such Securities. SECTION 5.02. Offices for Notices and Payments, etc. So long as any Securities of any series remain outstanding, the Company will maintain in 31 23 the Borough of Manhattan, The City of New York, a Place of Payment as an office or agency where the Securities of that series may be presented for payment, an office or agency where the Securities of that series may be presented for registration of transfer and for exchange as provided in this Indenture and an office or agency where notices and demands to or upon the Company in respect of the Securities of that series or of this Indenture may be served; provided, however, that in the case of any Security issued in bearer form in the Eurodollar Market, the office for payment of bearer Securities and coupons appertaining thereto will be located in London, England. The Company will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made at the Principal Office of the Trustee (or at any other address previously furnished in writing to the Company by the Trustee) and notices may be served at the Principal Office of the Trustee. The Company initially appoints the Trustee its agent for payment, for registration of transfers, for exchange of the Securities and where notices and demands may be served upon the Company. Notwithstanding any other provisions to the contrary, the Company at its option may make payment of Registered Securities by mail as provided in Section 2.01. SECTION 5.03. Limitation on Liens. Nothing in this Indenture or in the Securities shall in any way restrict or prevent the Company or any Subsidiary from incurring any indebtedness; provided that the Company covenants and agrees that neither it nor any Restricted Subsidiary will issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being hereinafter in this Article Five called "Debt") secured by mortgage, lien, pledge or other encumbrance (mortgages, liens, pledges or other encumbrances being hereinafter in this Article Five called "Mortgages") upon any Restricted Property, without effectively providing that the Securities of each series then outstanding and thereafter created (together with, if the Company so determines, any other indebtedness or obligation then existing and any other indebtedness or obligation thereafter created ranking equally with the Securities then existing or thereafter created which is not subordinated to the Securities of each series) shall be secured equally and ratably with (or prior to) such Debt so long as such Debt shall be so secured, except that the foregoing provisions shall not apply to: 32 24 (a) Mortgages affecting property of a corporation existing at the time it becomes a Subsidiary or at the time it is merged into or consolidated with the Company or a Subsidiary; (b) Mortgages on property existing at the time of acquisition thereof or incurred to secure payment of all or part of the purchase price thereof or to secure Debt incurred prior to, at the time of or within 24 months after acquisition thereof for the purpose of financing all or part of the purchase price thereof; (c) Mortgages on property to secure all or part of the cost of exploration, drilling or development thereof or (in the case of property which is, in the opinion of the Board of Directors, substantially unimproved for the use intended by the Company) all or part of the cost of improvement thereof, or to secure Debt incurred to provide funds for any such purpose; (d) Mortgages which secure only an indebtedness owing by a Subsidiary to the Company or a Subsidiary; (e) Mortgages in favor of the United States or any state thereof, or any department, agency, instrumentality, or political subdivision of any such jurisdiction, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of constructing or improving the property subject thereto, including, without limitation, Mortgages to secure Debt of the pollution control or industrial revenue bond type; or (f) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Mortgage referred to in the foregoing clauses (a) to (e) inclusive or of any Debt secured thereby, provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Mortgage shall be limited to all or part of substantially the same property which secured the Mortgage extended, renewed or replaced (plus improvements on such property). Notwithstanding the foregoing provisions of this Section 5.03, the Company and any one or more Restricted Subsidiaries may issue, assume or guarantee Debt secured by Mortgages which would otherwise be subject to 33 25 the foregoing restrictions in an aggregate principal amount which, together with the aggregate outstanding principal amount of all other Debt of the Company and its Restricted Subsidiaries which would otherwise be subject to the foregoing restrictions (not including Debt permitted to be secured under clauses (a) to (f) inclusive above) and the aggregate Value, as defined in Section 5.05, of the Sale and Lease-Back Transactions, as defined in Section 5.04, in existence at such time (not including Sale and Lease-Back Transactions as to which the Company has complied with Section 5.04(b)), does not at any one time exceed 10% of the Consolidated Net Tangible Assets of the Company and its consolidated Subsidiaries. The following types of transactions, among others, shall not be deemed to create Debt secured by Mortgage: (1) the sale or other transfer of oil, gas or other minerals in place for a period of time until, or in an amount such that, the transferee will realize therefrom a specified amount (however determined) of money or such minerals, or the sale or other transfer of any other interest in property of the character commonly referred to as a production payment; and (2) Mortgages required by any contract or statute in order to permit the Company or a Subsidiary to perform any contract or subcontract made by it with or at the request of the United States of America, any State or any department, agency or instrumentality of either. SECTION 5.04. Limitation on Sale and Lease-Back. The Company covenants and agrees that neither it nor any Restricted Subsidiary will enter into any arrangement with any Person (other than the Company or a Subsidiary), or to which any such Person is a party, providing for the leasing to the Company or a Restricted Subsidiary for a period of more than three years of any Restricted Property which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person (other than the Company or a Subsidiary), to which funds have been or are to be advanced by such Person on the security of the leased property (in this Article Five called "Sale and Lease-Back Transactions") unless either: (a) the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions of Section 5.03, to incur Debt in a principal amount equal to or exceeding the Value of such Sale and Lease-Back 34 26 Transaction, secured by Mortgage on the property to be leased, without equally and ratably securing the Securities; or (b) the Company (and in any such case the Company covenants and agrees that it will do so) during or immediately after the expiration of four months after the effective date of such Sale and Lease-Back Transaction (whether made by the Company or a Restricted Subsidiary) applies to the voluntary retirement of indebtedness of the Company (including Securities, provided that Securities may only be redeemed at the redemption prices and in accordance with the other provisions of the form thereof), maturing by the terms thereof more than one year after the original creation thereof and ranking at least pari passu with the Securities (hereinafter in this Section called "Funded Debt") an amount equal to the Value of such Sale and Lease-Back Transaction, less the principal amount of Securities delivered, within four months after the effective date of such arrangement, to the Trustee for retirement and cancellation and the principal amount of other Funded Debt voluntarily retired by the Company within such four-month period, excluding retirements of Securities and other Funded Debt as a result of conversions or pursuant to mandatory sinking fund or prepayment provisions or by payment at maturity. SECTION 5.05. Definition of "Value." For purposes of Sections 5.03 and 5.04, the term "Value" shall mean, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (1) the net proceeds of the sale or transfer of the property leased pursuant to such Sale and Lease-Back Transaction or (2) the fair value, in the opinion of the Board of Directors, of such property at the time of entering into such Sale and Lease-Back Transaction, in either case divided first by the number of full years of the term of the lease and then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease. SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee for any one or more series of Securities, will appoint a Trustee, in the manner provided in Section 8.10 so that there shall at all times be a Trustee with respect to each series of Securities hereunder. SECTION 5.07. Provision as to Paying Agent. (a) If the Company shall appoint a paying agent other than the Trustee with respect to the Securities 35 27 of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 5.07 (1) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest, if any, on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series; and (2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, or interest, if any, on the Securities of such series when the same shall be due and payable. (b) If the Company shall act as its own paying agent with respect to the Securities of any series it will, on or prior to each due date of the principal of and premium, if any, or interest, if any, on any of the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of such Securities or the coupons appertaining thereto, as the case may be, a sum sufficient to pay such principal and premium, if any, or interest, if any, so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor under such Securities) to make any payment of the principal of and premium, if any, or interest, if any, on such Securities when the same shall become due and payable. (c) Whenever the Company shall have one or more paying agents with respect to the Securities of any series it will deposit with a paying agent, on each due date of the principal of and premium, if any, or interest, if any, on any Securities of such series, a sum in immediately available funds sufficient to pay the principal and premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Holders of such Securities or the coupons appertaining thereto, as the case may be, entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act; provided, however, that in the case of any payment of principal, premium, if any, or interest on any Security issued in bearer form in the Eurodollar Market, the Company will deposit with the paying agent, on the Business Day next preceding the due date in funds available on the due date the principal of, premium, if any, or interest on said Security. (d) Anything in this Section 5.07 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and 36 28 discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section 5.07, such sums to be held by the Trustee upon the trusts herein contained. (e) Anything in this Section 5.07 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.07 is subject to Sections 13.03 and 13.04. SECTION 5.08. Certificate to Trustee. The Company will deliver to the Trustee on or before September 1 in each year during which any Securities are outstanding hereunder (beginning with respect to Securities of each series with the September 1 next following the issue date of any series of Securities) an Officers' Certificate stating that in the course of the performance by the signers of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any covenants contained in Sections 5.03, 5.04, 12.01 or 12.02, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. ARTICLE SIX. HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. Holders Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, with respect to the Registered Securities of each series (i) semi-annually, not later than each interest payment date for such series and on dates to be determined pursuant to Section 2.01 for non-interest bearing Securities in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders, as of the respective record dates therefor, and on dates to be determined pursuant to Section 2.01 for non-interest bearing Securities, and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days prior to the time such information is 37 29 furnished; provided, however, that so long as the Trustee shall be the registrar of a series of Securities all of which are Registered Securities, such list shall not be required to be furnished in respect of that series. SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Registered Securities of any series contained in the most recent list furnished to it as provided in Section 6.01 or received by the Trustee in its capacity as Securities registrar. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished. (b) In case three or more Holders of Securities of the same series (hereinafter referred to as "applicants") apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series or with Holders of Securities of all series with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit for such purpose, then the Trustee shall, within five business days after the receipt of such application, at its election, either (1) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02, or (2) inform such applicants as to the approximate number of Holders of Securities of such series or of all series, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02 and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of a Security of such series or of all series, as the case may be, whose name and address appears in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) 38 30 of this Section 6.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Securities and Exchange Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or of all series, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, said Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise, the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each Holder of any Security or coupon or both, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be held accountable by reason of the disclosure of the name and address of such Holder in accordance with the provisions of subsection (b) of this Section 6.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b). SECTION 6.03. Reports by the Company. (a) The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as said Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with said Commission pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports 39 31 pursuant to either of such sections, then to file with the Trustee and said Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Company covenants and agrees to file with the Trustee and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. (c) The Company covenants and agrees to transmit by mail to each Holder of Securities, in the manner and to the extent provided in Section 6.04, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 6.03 as may be required by rules and regulations prescribed from time to time by the Securities and Exchange Commission. SECTION 6.04. Reports by the Trustee. (a) On or before December 15 in every year after the first series of Securities is issued hereunder, so long as any Securities are outstanding hereunder, the Trustee shall transmit to the Holders, as hereinafter in this Section 6.04 provided, a brief report dated as of the preceding October 15 with respect to: (1) its eligibility under Section 8.09 and its qualification under Section 8.08 or in lieu thereof, if to the best of its knowledge it has continued to be eligible and qualified under such Sections, a written statement to such effect; (2) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to state such advances if such advances so remaining unpaid aggregate not 40 32 more than 1/2 of 1% of the principal amount at Stated Maturity of the Securities outstanding on the date of such report; (3) the amount, interest rate, and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13; (4) the property and funds, if any, physically in the possession of the Trustee, as such, on the date of such report; (5) any additional issue of Securities which the Trustee has not previously reported; and (6) any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which in its opinion materially affects any of the Securities, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 7.08. (b) The Trustee shall transmit to the Holders, as hereinafter provided, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such), since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section 6.04 (or, if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities, on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of Securities at Stated Maturity outstanding at such time, such report to be transmitted within 90 days after such time. (c) Reports pursuant to this Section shall be transmitted by mail: (1) to all Registered Holders of Securities, as the names and addresses of such Holders appear in the registry books of the Company; 41 33 (2) to such Holders of Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and (3) except in the case of reports pursuant to subsection (b) of this Section, to each Holder whose name and address is preserved at the time by the Trustee, as provided in Section 6.02. (d) 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 the Securities are listed and also with the Securities and Exchange Commission. The Company will notify the Trustee when any Securities are listed on any stock exchange. ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT. SECTION 7.01. Events of Default. "Event of Default," whenever used herein with respect to Securities of any series means each one of the following events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the supplemental indenture under which such series of Securities is issued, if any, or in the form of Security for such series: (a) default in the payment of any installment of interest upon any Security of that series when the same becomes due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or premium, if any, on any Securities of that series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or (c) default in the payment of any sinking fund installment or analogous obligation as and when the same shall become due and payable by the terms of that series, and continuance of such default for a period of 30 days; or (d) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the 42 34 Securities of such series or in this Indenture (other than a covenant or agreement in respect of the Securities of such series a default in the performance of which or the breach of which is elsewhere in this Section 7.01 specifically provided for or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series), and continuance of such default or breach for a period of 90 days after the date on which written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Stated Maturity of the Securities of that series at the time outstanding; or (e) if there shall be entered a decree or order by a court having jurisdiction for relief in respect of the Company under the Federal Bankruptcy Code, as now constituted or as hereafter amended, or any other applicable Federal or State bankruptcy law or other similar law, or appointing a receiver, trustee or liquidator, or other similar official of the Company or of any substantial part of its property, or ordering the winding-up or liquidation of its affairs and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (f) if the Company shall file a petition or an answer or consent seeking relief under the Federal Bankruptcy Code, as now constituted or as hereinafter amended, or any other applicable Federal or State bankruptcy law or other similar law, or shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking possession by a receiver, trustee, custodian or other similar official of the Company or of any substantial part of its property, or the Company shall make an assignment for the benefit of creditors generally or shall admit in writing to its inability to pay its debts generally as they become due; or (g) any other Event of Default provided in the form of Security for such series, or in the supplemental indenture under which such series of Securities is issued, if any. If an Event of Default described in clauses (a), (b), (c) or (g) with respect to Securities of any series at the time outstanding, then and in each and every such case, unless the principal of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of 43 35 not less than 25% in aggregate principal amount at Stated Maturity of the Securities of such series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (in the case of Securities that are Original Issue Discount Securities, such principal amount as may be determined in accordance with the terms of that series) of all the Securities of such series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding. If an Event of Default described in clauses (d), (e) or (f) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount at Stated Maturity of all the Securities then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined in accordance with the terms of that series) of all the Securities to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities contained to the contrary notwithstanding. The foregoing provisions are, however, subject to the condition that if, at any time after the principal amount (in the case of Securities that are Original Issue Discount Securities, such portion of the principal amount as may be determined in accordance with the terms of that series) of the Securities of any series or of all the Securities, as the case may be, shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series or of all of the Securities, as the case may be, and the principal of and premium, if any, on all Securities of such series or of all the Securities, as the case may be, which shall have become due otherwise than by acceleration (with interest on overdue installments of interest, to the extent that payment of such interest is enforceable under applicable law, and on such principal and premium, if any, at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities) borne by the Securities of such series or at the rates of interest or yields to maturity of all 44 36 the Securities, as the case may be, to the date of such payment or deposit) and the reasonable expenses of the Trustee, and any and all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest, if any, on Securities of such series or of all of the Securities, as the case may be, which shall have become due by acceleration, shall have been remedied - then and in every such case the Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of such series or of all of the Securities, as the case may be, then outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to that series or of all of the Securities, as the case may be, and rescind and annul such declaration and its consequences; but no waiver or rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceeding had been taken. SECTION 7.02. Payment of Securities on Default; Suit Therefor. The Company covenants that in case (1) default shall be made in the payment of any installment of interest upon any Security of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (2) default shall be made in the payment of the principal of or premium, if any, on any Security of any series as and when the same shall have become due and payable, whether at maturity of Securities of that series or otherwise, or (3) default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series and such default shall continue for a period of 30 days - then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holder of any such Security, the whole amount that then shall have become due and payable on any such Security for principal and premium, if any, or interest, if any, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of 45 37 such interest is enforceable under applicable law) upon the overdue installments of interest at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities) borne by any such Security and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its negligence or bad faith. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property, wherever situated, of the Company or any other obligor upon such Securities. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities of any series under the Federal Bankruptcy Code, as now constituted or as hereafter amended, or any other Federal or State bankruptcy law or other similar law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor upon the Securities of any series, or to the creditors or property of the Company or such other obligor, the Trustee (irrespective of whether the principal of any Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.02) shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and premium, if any, and interest, if any, owing and unpaid in respect of the Securities of any series (in the case of Securities that are Original Issue Discount Securities, such principal amount as would be then due and payable upon declaration of acceleration in accordance with the terms of that series) and, in case of any judicial proceedings, to file such proofs of 46 38 claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities of any series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for compensation and expenses, including counsel fees incurred by it up to the date of such distribution. Nothing herein contained shall be deemed to authorize the Trustee to approve, consent, 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. All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee with respect to the Securities of any series shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such action is taken. SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee with respect to any series of Securities under this Article Seven shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities of such series or the coupons appertaining thereto, as the case may be, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 8.06 hereof; 47 39 SECOND: In case the principal of the outstanding Securities of that series shall not have become due and be unpaid, to the payment of interest on the Securities of that series, in the order of the maturity of the installments of such interest with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate of interest (or yield to maturity in the case of Original Issue Discount Securities) borne by the Securities of that series, such payments to be made ratably to the Persons entitled thereto; THIRD: In case the principal of the outstanding Securities of a series in respect of which such moneys have been collected shall have become due and payable, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of that series for principal and premium, if any, and interest, if any, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon any overdue installments of interest at the rate of interest (or yield to maturity in the case of Original Issue Discount Securities) borne by the Securities of that series, and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities of that series, then to the payment of such principal and premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Security of that series over any other Security of that series, ratably to the aggregate of such principal and premium, if any, and any accrued and unpaid interest. Any surplus then remaining shall be paid to the Company or to such other Person as shall be entitled to receive it. SECTION 7.04. Proceedings by Holders. No Holder of any Security of any series or of any coupon appertaining thereto shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount at Stated Maturity of the Securities of that series (or, in case of an Event of Default described in clause (d), (e) or (f) of 48 40 Section 7.01, 25% in aggregate principal amount of all Securities then outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as the Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee during such 60 day period by the Holders of a majority in principal amount at Stated Maturity of the outstanding Securities of such series, it being understood and intended, and being expressly covenanted by the taker and Holder of every Security of that series with every other taker and Holder of every Security of that series or coupons appertaining thereto and the Trustee, that no one or more Holders of Securities of any series 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 Holder of Securities of that series or any other series or coupons appertaining thereto, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities. Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security or coupon to receive payment of the principal of, and premium, if any, and interest, if any, on such Security, on or after the respective Stated Maturities expressed in such Security or, in the case of redemption or repayment on or after the redemption date or repayment date, as the case may be, and to institute suit for the enforcement of any such payment on or after such respective date shall not be impaired or affected without the consent of such Holder. SECTION 7.05. Proceedings by Trustee. In case of an Event of Default hereunder, the Trustee, in its discretion, may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement 49 41 of any Covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 7.06. Remedies Cumulative and Continuing. All powers and remedies given by this Article Seven to the Trustee or to the Holders of Securities or coupons shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or such Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 7.04, every power and remedy given by this Article Seven or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority in aggregate principal amount of the Securities of all series affected (voting as one class) (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities") at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, provided, however, that (subject to the provisions of Section 8.01) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that the action or proceedings so directed would involve the Trustee in personal liability. Prior to any declaration accelerating the maturity of the Securities of a particular series (or all of the Securities as the case may be), the Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of that series at the time outstanding may on behalf of the Holders of all the Securities of that series waive any past default or Event of Default described in clause 50 42 (a), (b), (c) or (g) of Section 7.01 (or, in the case of an event specified in clause (d), (e) or (f) of Section 7.01, the Holders of an aggregate principal amount of all the Securities then outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) may waive such default or Event of Default as its consequences except (1) a default in the payment of interest, if any, or premium, if any, on, or the principal of, any of the Securities or in the payment of any sinking fund installment or analogous obligation with respect to Securities or (2) in respect of a covenant or provision hereof which under Article Eleven cannot be modified or amended without the consent of the Holder of each Security outstanding of the series affected. Upon any such waiver the Company, the Trustee and the Holders of Securities of that series (or all of the Securities, as the case may be) shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 7.07, said default or Event of Default shall for all purposes of the Securities and this Indenture be deemed to have been cured and to be not continuing. SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days after the occurrence of any default hereunder with respect to Securities of any series, mail to all Holders of Securities of that series in the manner and to the extent provided in Section 6.04(c) notice of such default known to the Trustee, unless such default shall have been cured prior to the giving of such notice; and provided that, except in the case of default in the payment of the principal of or premium, if any, or interest, if any, on any of the Securities of that series or in the making of any sinking fund payment or analogous obligation with respect to Securities of that series, the Trustee shall be protected in withholding such notice if and so long as the board of directors or trustees, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of Securities of such series; and provided, further. that in the case of any default of the character specified in Section 7.01(d) with respect to Securities of such series, no such notice to Holders of Securities of such series shall be given until at least 90 days after the occurrence thereof. For the purpose of this 51 43 Section, the term "default," with respect to Securities of any series, means any event which is, or after notice or lapse of time, or both, would become, an Event of Default with respect to Securities of such series. SECTION 7.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.09 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders, holding in the aggregate more than 10% in principal amount at Stated Maturity of the Securities outstanding of that series (or, in case of any suit relating to or arising under clause (d), (e) or (f) of Section 7.01, 10% in principal amount of all Securities outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) or to any suit instituted by any Holder for the enforcement of the payment of the principal of or premium, if any, or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Securities (or in the case of redemption or repayment on or after the redemption date or repayment date). ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.01. Duties and Responsibilities of Trustee. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of that series and after the curing of all Events of Default which may have occurred with respect to the Securities of that series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations with respect to such series shall be read 52 44 into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of any series has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to that series and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Prior to the occurrence of an Event of Default with respect to the Securities of a series, and after the curing or waiving of all Events of Default with respect to that series which may have occurred and in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (a) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts, and (b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 7.07 of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it has reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 53 45 SECTION 8.02. Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 8.01 (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a written statement signed in the name of the Company by the Chairman of the Board of Directors, the President, a Chief Operating Officer, the Chief Corporate Officer, a Vice Chairman of the Board of Directors, one of its Vice Presidents or its Treasurer (unless other evidence in respect thereof is herein specifically prescribed); and any resolution of the Board of Directors shall be sufficiently evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to do so by the Holders of not less than a majority in principal amount at Stated Maturity of the Securities then 54 46 outstanding of any series affected or of all the Securities, as the case may be; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys. SECTION 8.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities (except in the Trustee's certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of any of the Securities or coupons; provided that the Trustee shall not be relieved of its duty to authenticate Securities as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities. The Trustee or any paying agent or Security registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or the coupons appertaining thereto with the same rights it would have if it were not Trustee, paying agent or Security registrar. SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions of Section 13.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee and any paying agent shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon. SECTION 8.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the 55 47 Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses. disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability arising in connection with its duties under this Indenture. The obligations of the Company under this Section 8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities. SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise provided in Section 8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate. in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in Section 8.10. 56 48 (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10 days after the expiration of such 90 day period, transmit notice of such failure to all Holders of Securities, to the extent provided in Section 6.04(c). (c) For the purposes of this Section 8.08, the Trustee shall be deemed to have a conflicting interest with respect to Securities of any series if: (1) the Trustee is trustee under this Indenture with respect to the outstanding securities of any series other than that series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities issued under this Indenture; provided that there shall be excluded from the operation of this paragraph (A)(i) the Indenture dated December 15, 1963, by and between Sinclair Oil Corporation, to which the Company is successor by merger, and the Trustee, under which the Company's 4.60% Sinking Fund Debentures Due 1988 are outstanding; (ii) the Indenture dated as of December 1, 1968, by and between The Anaconda Company, to which the Company is successor by merger, and the Trustee, pursuant to which the Company's 6 5/8% Debentures Due 1993 are outstanding; (iii) the Indenture dated as of December 15, 1970, by and between the Company and the Trustee, pursuant to which the Company's 7.70% Debentures Due 2000 are outstanding; (iv) the Indenture dated as of January 15, 1975, by and among ARCO Pipe Line Company and the Company, as Guarantor, and the Trustee, under which ARCO Pipe Line Company's 7 3/4% Guaranteed Notes Due 1986 are outstanding; and (v) the Indenture dated as of May 1, 1980, by and between the Company and the Trustee, under which the Company's 11.375% Debentures Due 2010 are outstanding; and (B) this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of section 305 or subsection (c) of section 307 of the Trust Indenture Act of 1939 that differences exist 57 49 between the provisions of this Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of that series and any such other series and such other indentures, or (ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to Securities of that series and such other series and such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of that series or such other series or such indenture or indentures; (2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the Company; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer of the Trustee and a director or an executive officer of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director or an executive officer of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by an underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise; (5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner, or executive 58 50 officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons; (6) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, (A) 5% or more of the voting securities, or 10% or more of any other class of security, of the Company, not including the Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) 10% or more of any class of security of an underwriter for the Company; (7) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company; or (9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Company fails to make payment in full of principal of or interest 59 51 on any of the Securities when and as the same becomes due and payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c). For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c) only, (A) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (B) an obligation shall be deemed to be in default when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default as defined in clause (B) above, or (ii) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity. Except as provided in the next preceding paragraph hereof, the words "security" or "securities" as used in this Indenture shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a 60 52 security, fractional undivided interest in oil, gas or other mineral rights, or, in general, any interest or instrument commonly known as a "security" or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. (d) For the purposes of this Section 8.08: (1) The term "underwriter" when used with reference to the Company shall mean every person who, within three years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered or sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. (2) The term "director" shall mean any director of a corporation or any individual performing similar functions with respect to any organization whether incorporated or unincorporated. (3) The term "person" shall mean an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization, or a government or political subdivision thereof. As used in this paragraph, the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security. (4) The term "voting security" shall mean any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person. (5) The term "Company" shall mean any obligor upon the Securities. (6) The term "executive officer" shall mean the president, every vice president, every trust officer, the cashier, the secretary, and the treasurer of a 61 53 corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors. The percentages of voting securities and other securities specified in this Section 8.08 shall be calculated in accordance with the following provisions: (A) A specified percentage of the voting securities of the Trustee, the Company or any other person referred to in this Section 8.08 (each of whom is referred to as a "person" in this paragraph) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person. (B) A specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding. (C) The term "amount," when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares, and the number of units if relating to any other kind of security. (D) The term "outstanding" means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition: (i) securities of an issuer held in a sinking fund relating to securities of the issuer of the same class; (ii) securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise; (iii) securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise; (iv) securities held in escrow if placed in escrow by the issuer thereof; provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof. (E) A security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof 62 54 substantially the same rights and privileges; provided, however, that in the case of secured evidences of indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes, and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture. SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States or any State or Territory thereof or of the District of Columbia authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000, subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority and having its principal office and place of business in The City of New York, if there be such a corporation having its principal office and place of business in said City. If such corporation publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee with respect to each series of Securities shall cease to be eligible in accordance with the provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.10. SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may resign with respect to any series of Securities at any time by giving written notice of such resignation to the Company and by giving notice thereof to the Holders of the applicable series of Securities in manner and to the extent provided in Section 6.04(c). Upon receiving such notice of resignation with respect to the applicable series of Securities, the Company shall promptly appoint a successor trustee with respect to that series by written instrument, in duplicate, executed by or pursuant to order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If a successor trustee shall not have been so appointed with respect to any series of 63 55 Securities, and shall have accepted appointment within 30 days after the giving of such notice of resignation to the Holders of such series, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 7.09, on behalf of such Holder and all others similarly situated, petition any such court for the appointment of a successor trustee with respect to that series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur- (1) the Trustee shall fail to comply with the provisions of subsection (a) of Section 8.08 after written request therefor by the Company or by any Holder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting, with respect to any series of Securities 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, the Company may remove the Trustee with respect to any one or more of such series of Securities and appoint a successor trustee of that series by written instrument, in duplicate, executed by or pursuant to order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or subject to the provisions of Section 7.09, any Holder has been a bona fide Holder of a Security or Securities of that series for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to that series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to that series. 64 56 (c) The Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of any series at the time outstanding may at any time remove the Trustee with respect to such series and nominate with respect to such series a successor trustee which shall be deemed appointed as successor trustee with respect to such series unless within 10 days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of Securities of the series may petition any court of competent jurisdiction for appointment of a successor trustee with respect to such series upon the terms and conditions and otherwise as provided in subsection (a) of this Section 8.10. (d) Any resignation or removal of the Trustee and any appointment of a successor trustee with respect to an applicable series of Securities pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor trustee for that series as provided in Section 8.11. (e) The Company shall give notice as provided in Section 15.05 of each resignation or removal of the Trustee with respect to any series of Securities. Each notice shall include the name of such successor trustee and the address of its Principal Office and shall be given within 60 days of such event. SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers and trusts with respect to any series of Securities of the trustee so ceasing to act. Upon request of any successor trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and 65 57 confirm to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 8.06. In case of the appointment hereunder of a successor trustee with respect to the Securities of any one or more (but not all) series, the Company, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which shall contain (1) such provisions as shall be necessary or desirable to transfer and confirm to, and vest in each successor trustee all of the rights, powers and duties of the predecessor trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (2) if the retiring trustee is not retiring with respect to all Securities, it shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee and (3) 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. No successor trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09. Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, the Company shall mail notice of the succession of such trustee hereunder to all the Registered Holders of such series as the names and addresses of such Holders shall appear on the registry books of the Company and shall publish notice of such event once in an Authorized Newspaper in the Place of Payment. If the Company fails to mail such notice in the prescribed manner within 10 days after the acceptance of 66 58 appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. SECTION 8.12. Succession by Merger, etc. 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 the business of the Trustee, shall be the successor of the Trustee hereunder provided such corporation shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09 without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities of any series so authenticated; and in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities of any series either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities of any series or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to the provision of subsection (b) of this Section 8.13, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company or of any other obligor on the Securities of any series within four months prior to a default, as defined in subsection (c) of this Section 8.13, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in special account for the benefit of the Trustee individually, the Holders of the Securities of any series, and the holders of other indenture securities (as defined in paragraph (2) of subsection (c) of this Section 8.13) 67 59 (1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such four-month period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and (2) all property received by the Trustee in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such four-month period, or an amount equal to the proceeds of any such property, if disposed of, subject however, to the rights, if any, of the Company and its other creditors in such property or such proceeds. Nothing herein contained, however, shall affect the right of the Trustee: (A) to retain for its own account (i) payments made on account of any such claim by any person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities, or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to Federal or State bankruptcy laws or other similar laws; (B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such four-month period; (C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such four-month period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in subsection (c) of this Section 8.13, would occur within four months; or (D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as 68 60 provided in such paragraph (B) or (C), as the case may be, to the extent of the fair value of such property. For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such four-month period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim. If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the Holders of Securities of a series as to which such Trustee is acting as Trustee hereunder and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee, the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the Holders and the 69 61 holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee, the Holders and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. Any Trustee who has resigned or been removed after the beginning of such four-month period shall be subject to the provisions of this subsection (a) as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such four-month period, it shall be subject to the provisions of this subsection (a) if and only if the following conditions exist: (i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Trustee had continued as trustee, occurred after the beginning of such four-month period; and (ii) such receipt of property or reduction of claim occurred within four months after such resignation or removal. (b) There shall be excluded from the operation of subsection (a) of this Section 8.13 a creditor relationship arising from: (1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction, or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advance and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in Section 6.04 with respect to reports pursuant to subsections (a) and (b) thereof, respectively; 70 62 (3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity; (4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in subsection (c) of this Section 8.13; (5) the ownership of stock or of other securities of a corporation organized under the provisions of section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; or (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper as defined in subsection (c) of this Section 8.13. (c) For the purposes of this Section 8.13: (1) The term "default" shall mean any failure to make payment in full of the principal of or interest upon one of the Securities of any series or upon the other indenture securities when and as such principal or interest becomes due and payable. (2) The term "other indenture securities" shall mean securities upon which the Company is an obligor (as defined in the Trust Indenture Act of 1939) outstanding under any other indenture (A) under which the Trustee is also trustee, (B) which contains provisions substantially similar to the provisions of subsection (a) of this Section 8.13, and (C) under which a default exists at the time of the apportionment of the funds and property held in said special account. (3) The term "cash transaction" shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand. (4) The term "self-liquidating, paper" shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, 71 63 possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security; provided that the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation. (5) The term "Company" shall mean any obligor upon the Securities. ARTICLE NINE. CONCERNING THE HOLDERS. SECTION 9.01. Action by Holders. (a) Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount at Stated Maturity of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (A) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (B) by the record of the Holders of Securities voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article Ten, or (C) by a combination of such instrument or instruments and any such record of such a meeting of such Holders. (b) If the Company shall solicit from the Holders of any or all series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by or pursuant to resolution of the Board of Directors fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after the record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Securities 72 64 have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities deemed to be outstanding shall be computed as of the record date; provided that no such authorization, agreement or consent by the Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 9.02. Proof of Execution by Holders. Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a Holder, his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Securities of any series shall be proved by the registry books of the Company or by a certificate of the registrar of the Securities of any series. The record of any meeting of Holders of Securities may be proved in the manner provided in Section 10.06. SECTION 9.03. Who Deemed Absolute Owners. The Company, the Trustee, any paying agent, any transfer agent and any Security registrar may treat the Holder of any Unregistered Security and the Holder of any coupon, except with respect to a Fully Registered Security, whether or not the Security to which it appertained be registered, as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes (whether or not such Security or coupon shall be overdue) and neither the Company, the Trustee, any paying agent, any transfer agent nor any Security registrar shall be affected by any notice to the contrary. The Company, the Trustee, any paying agent, any transfer agent and any Security registrar may treat the person in whose name a Registered Security shall be registered upon the registry books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment of principal of, premium, if any, on and, if such Registered Security is a Fully Registered Security, interest, if any, on, such Registered Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any transfer agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being or upon his order shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon such Security. 73 65 The amount of Unregistered Securities held by any Person executing any instrument or writing as a Holder, and the numbers of such Unregistered Securities, and the date of his holding the same, may be proved by the production of such Securities or by a certificate executed by any trust company, bank, banker or member of a national securities exchange (wherever situated), as depositary, if such certificate is in form satisfactory to the Trustee, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Unregistered Securities therein described; or such facts may be proved by the certificate or affidavit of the Person executing such instrument or writing as a Holder, if such certificate or affidavit is in form satisfactory to the Trustee. The Trustee and the Company may assume that such ownership of any Unregistered Security continues until (i) another certificate bearing a later date issued in respect of the same Unregistered Security is produced, or (ii) such Unregistered Security is produced by some other Person, or (iii) such Unregistered Security is registered as to principal or is surrendered in exchange for a Fully Registered Security, or (iv) such Unregistered Security has been cancelled in accordance with Section 2.08. SECTION 9.04. Company-Owned Securities Disregarded. In determining whether the Holders of the requisite aggregate principal amount at Stated Maturity of Securities have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on such Securities or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction or consent only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 9.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company. or any such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. 74 66 SECTION 9.05. Revocation of Consents; Future Holders Bound. (a) At any time prior to but not after, the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount at Stated Maturity of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the number, letter or other distinguishing symbol of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at the Principal Office of the Trustee and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Holder and all future Holders and owners of such Security and any Securities which may be issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Security or such other Security issued in exchange or substitution therefor. (b) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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 any action taken, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. ARTICLE TEN. HOLDERS' MEETINGS. SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Ten for any of the following purposes: (1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Seven; (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Eight; 75 67 (3) to consent to the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 11.02; or (4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount at Stated Maturity of the Securities of any or all series, as the case may be, under any other provisions of this Indenture or under applicable law. SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any or all series to take any action specified in Section 10.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any or all series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to Holders of Registered Securities of each series affected, at their addresses as they appear on the registry books of the Company, and notice to Holders of Unregistered Securities of each series affected shall be published in an Authorized Newspaper in the Place of Payment. Such notice shall be mailed or published, as the case may be, not less than 20 nor more than 90 days prior to the date fixed for the meeting. However, if all Securities of any series with respect to which the meeting is to be held are Registered Securities no notice need be given except notice by mail as hereinabove provided. Failure to receive such notice or any defect therein shall in no case affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of any or all series, as the case may be, shall be valid without notice if the Holders of all such Securities outstanding, the Company and the Trustee are present in person or by proxy or shall have waived notice thereof before or after the meeting. SECTION 10.03. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the Holders of at least 10% in aggregate principal amount at Stated Maturity of the Securities then outstanding of any or all series, as the case may be, that may be affected by the action proposed to be taken at the meeting, shall have requested the Trustee to call a meeting of Holders of Securities of any or all series, as the case may be, that may be so affected by written request setting forth in a reasonable detail the action proposed to be taken at the 76 68 meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders, in the amount specified, may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 10.01, by mailing notice thereof as provided in Section 10.02. SECTION 10.04. Qualification for Voting. To be entitled to vote at any meeting of Holders of Securities, a Person shall (a) be a Holder of one or more Securities with respect to which such meeting is being held or (b) be a Person appointed by an instrument in writing as proxy by such a Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any or all series, as the case may be, shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 10.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem fit. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 10.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount at Stated Maturity of the Securities represented at the meeting. Subject to the provisions of Section 9.04, at any meeting each Holder of Securities with respect to which such meeting is being held, or proxy therefor, shall be entitled to one vote for each $1,000 principal amount (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities") of such Securities 77 69 held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any such Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than as a Holder of Securities or proxy therefor. At any meeting of Holders of Securities, the presence of Persons holding or representing the Securities with respect to which such meeting is being held in such aggregate principal amount sufficient to take action on the business for the transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the Persons holding or representing a majority in such aggregate principal amount of such Securities represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present. Any meeting of Holders of Securities with respect to which such meeting is being held duly called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time to time by vote of the Holders of a majority in such aggregate principal amount of the Securities represented at the meeting and entitled to vote, and the meeting may be held as so adjourned without further notice. SECTION 10.06. Voting. The vote upon any resolution submitted to any meeting of Holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be inscribed the signatures of the Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 10.02. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by 78 70 the Trustee. Any record so signed and verified shall be conclusive evidence of the matters therein stated. SECTION 10.07. No Delay of Rights by Meeting. Nothing in this Article Ten contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of Securities or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Securities under any of the provisions of this Indenture or of the Securities. ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. Supplemental Indentures without Consent of Holders. Without the consent of any Holders of any series of Securities, the Company, when authorized by or pursuant to a resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes: (a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation, pursuant to Article Twelve hereof, of the covenants, agreements and obligations of the Company herein and in the Securities contained; (b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of any series of Securities as the Board of Directors and the Trustee shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default 79 71 or may limit the remedies available to the Trustee upon such default and shall not adversely affect the interests of the Holders of Securities of any series; (c) to convey. transfer, assign, mortgage or pledge to the Trustee as security for the Securities of any series, any property or assets which the Company may desire or may be required to convey, transfer, assign, mortgage or pledge in accordance with the provisions of Section 5.03 or Section 12.02; (d) to establish the form or terms of Securities of any series as permitted by Section 2.01; (e) to cure any ambiguity, to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided, however, such action shall not adversely affect the interests of the Holders of Securities of any series; or (f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11; or (g) to provide for the documentation necessary for the issuance of Securities outside the United States of America. The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 11.02. 80 72 SECTION 11.02. Supplemental Indentures with Consent of Holders of a Series. With the consent (evidenced as provided in Section 9.01) of the Holders of not less than 50% in aggregate principal amount at Stated Maturity of the Securities at the time outstanding of each series affected by such supplemental indenture or indentures, the Company, when authorized by or pursuant to a resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series under this Indenture; provided, however, that no such supplemental indenture shall without the consent of the Holder of each outstanding Security affected thereby (i) extend the fixed maturity of any Security, or reduce the rate of interest or extend the time of payment of interest, if any, thereon or reduce the principal thereof or the time during which premium is payable on or make the principal thereof or any premium or any interest thereon payable in any coin or currency other than that provided in such Securities, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 7.01 or the amount thereof provable in bankruptcy pursuant to Section 7.02 without the consent of the Holder of each Security so affected, or (ii) reduce the percentage in principal amount at Stated Maturity of the outstanding Securities, 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 hereof or of certain defaults hereunder and their consequences provided for in this Indenture. 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. Upon the request of the Company, accompanied by a copy of a resolution of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of such 81 73 series as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Eleven shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Eleven, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of the series of Securities affected shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 11.04. Notation on Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eleven may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding. SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and 8.02, shall be entitled to receive and shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel as conclusive 82 74 evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Eleven. ARTICLE TWELVE. CONSOLIDATION, MERGER AND SALE. SECTION 12.01. Company May Consolidate, etc., on Certain Terms. Subject to the provisions of Section 12.02, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of all or substantially all the property of the Company, to any other corporation (whether or not affiliated with the Company) authorized to acquire and operate the same; provided, however, and the Company hereby covenants and agrees, that upon any such consolidation, merger, sale or conveyance, other than a consolidation or merger in which the Company is the continuing corporation, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture and in such series to be performed by the Company, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the corporation (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the corporation which shall have acquired such property. SECTION 12.02. Securities to be Secured in Certain Events. If, upon any consolidation or merger of the Company with or into any other corporation, or upon any sale or conveyance of all or substantially all the property of the Company to any other corporation, any of the property of the Company or of any Restricted Subsidiary would thereupon become subject to any mortgage, lien or pledge, the Company, prior to or simultaneously with such consolidation, merger, sale or conveyance, will secure the Securities of each series outstanding hereunder, equally and ratably with any other obligations of the Company or any Restricted Subsidiary then entitled thereto, by a 83 75 direct lien on all such property prior to all liens other than any theretofore existing thereon. SECTION 12.03. Successor Corporation to be Substituted. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium, if any, and interest, if any, on all of the Securities of each series and the due and punctual performance of all of the covenants and conditions of this Indenture and in such series to be performed by the Company, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein and, if the Company is to be voluntarily dissolved, the Company shall thereupon be released from all obligations hereunder and under the Securities of each series. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of Atlantic Richfield Company any or all of the Securities of each series issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the other Securities of such series theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. SECTION 12.04. Opinion of Counsel to be Given Trustee. The Trustee, subject to Sections 8.01 and 8.02, shall be entitled to receive and shall be fully protected in relying upon, an Officers' Certificate and 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. 84 76 ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE. SECTION 13.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) and not theretofore cancelled, or (b) all the Securities of any series not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds (other than funds repaid by the Trustee to the Company in accordance with Section 13.04) sufficient to pay at maturity or upon redemption all of the Securities of such series (other than any Securities of such series which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered or which shall have been paid) not theretofore cancelled or delivered to the Trustee for cancellation, including principal and premium, if any, and interest, if any, due or to become due to such date of maturity or redemption date, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect with respect to Securities of such series, and the Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel as required by Section 15.07 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to Securities of such series, the Company, however, hereby agreeing to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities. SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee. All moneys deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it to the payment, either directly or through any paying 85 77 agent (including the Company if acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest and premium, if any. SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture, all moneys then held by any paying agent of the Securities (other than the Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with or paid to the Trustee for payment of the principal of (and premium, if any) or interest, if any, on Securities of any series and not applied but remaining unclaimed by the Holders of Securities of that series for three years after the date upon which the principal of, and premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due and payable, shall, upon written demand, be repaid to the Company by the Trustee; and the Holder of any of such Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect, provided, however, that, before being required to make any such repayment, the Trustee may (at the cost of the Company) mail to such Holders at their last known address or cause to be published once a week for two successive weeks, in each case on any day of the week, in an Authorized Newspaper in the Place of Payment, a notice (in such form as may be deemed appropriate by the Trustee) that said moneys remain unclaimed and that, after a date named therein, any unclaimed balance of said moneys then remaining will be returned to the Company (except that with respect to presentation of Securities for payment and transfer, such term shall mean the office or agency of the Trustee in said city at which at any particular time its corporate agency business shall be conducted). ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS. SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of or premium, if any, or 86 78 interest, if any, on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities. ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. Provisions Binding on Company's Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by the Company shall bind its successors and assigns whether so expressed or not. SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and assigns and the Holders, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; and, subject to the provisions of Articles Nine and Fourteen, all of such covenants, conditions and provisions shall be for the sole benefit of the parties hereto and the Holders. SECTION 15.03. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. SECTION 15.04. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or 87 79 served by the Trustee or by the Holders of Securities on the Company shall be deemed to have been sufficiently given or served, for all purposes, if given or served at the office of the Treasurer at the principal office of the Company at 515 South Flower Street, Los Angeles, California 90071 (until another address is filed by the Company with the Trustee). Any notice, direction, request of demand by any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Principal Office of the Trustee, addressed to the attention of its Corporate Trust Division. SECTION 15.05 Notices to Holders; Waiver. Where this Indenture or any Security provides for notice to Holders of any event, (1) if any of the Securities affected by such event are Registered Securities, such notice shall be sufficiently given (unless otherwise herein or in such Securities expressly provided) if in writing and mailed, first-class, postage prepaid, to each Registered Holder of such Securities, at his address as it appears on the registry books of the Company, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) if any of the Securities affected by such event are Unregistered Securities, such notice shall be sufficiently given (unless otherwise herein or in such Securities expressly provided) if published once in an Authorized Newspaper in the Place of Payment not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case, by reason of the suspension of publication of any Authorized Newspaper, or by reason of any other cause, it shall be impossible to make publication of any notice in one or more Authorized Newspapers as required by any Security or this Indenture, then such method of publication or notification as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice. 88 80 In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it shall be impractical to mail notice of any event to the Holders of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee and the Company shall be deemed to be a sufficient giving of such notice. SECTION 15.06. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. SECTION 15.07. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 15.08. Legal Holidays. In any case where the date of maturity of interest on or principal of the Securities or the date fixed for redemption of any Security will be a day on which banking institutions are authorized or obligated by law to close in The City of New York, New York, then payment of such interest and premium, if any, on or principal of the Securities need not be made on such date but may be made on the next 89 81 Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption and no interest shall accrue for the period from and after such date. SECTION 15.09. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such required provision shall control. SECTION 15.10. No Security Interest Created. Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction where property of the Company or its Subsidiaries is located. SECTION 15.11. Table of Contents, Headings, etc. The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 15.12. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. SECTION 15.13. Acceptance of Trust. The Trustee hereby accepts the trusts declared and provided in this Indenture, upon the terms and conditions herein above set forth. 90 82 IN WITNESS WHEREOF, ATLANTIC RICHFIELD COMPANY has caused this Indenture to be signed and acknowledged by its Chairman of the Board, its President, any Vice Chairman, any Chief Operating Officer, its Chief Corporate Officer, its Senior Vice President and Chief Financial Officer or its Vice President and Treasurer, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or an Assistant Secretary, and THE CHASE MANHATTAN BANK, N.A. has caused this Indenture to be signed and acknowledged by one of its Vice Presidents or Second Vice Presidents, has caused its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or one of its Assistant Secretaries, as of the day and year first written above. ATLANTIC RICHFIELD COMPANY (SEAL) By /s/ CAMRON COOPER ------------------------------------- Vice President and Treasurer Attest: /s/ WILLIAM W. FULMER - ------------------------------- Assistant Secretary THE CHASE MANHATTAN BANK, N.A., as Trustee (SEAL) By /s/ F.E. DAVIS, JR. ------------------------------------- Second Vice President Attest /s/ T.A. LACEY - ------------------------------- Assistant Secretary 91 83 STATE OF CALIFORNIA ) ) ss.: COUNTY OF LOS ANGELES ) On the 4th day of June, 1985, before me personally came CAMRON COOPER, to me known, who, being by me duly sworn, did depose and say that she resides at Pasadena, California; that she is Vice President and Treasurer of Atlantic Richfield Company, one of the corporations described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is said corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that she signed her name thereto by like authority. /s/ BARBARA M. HINDS ------------------------------------- [Notary Public] (Seal) OFFICIAL SEAL BARBARA M. HINDS NOTARY PUBLIC - CALIFORNIA LOS ANGELES COUNTY MY COMMISSION EXPIRES JUL 20, 1988 92 84 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the 7th day of June, 1985, before me personally came F.E. Davis, Jr., to me known, who, being by me duly sworn, did depose and say that he resides at 816 3rd Pl., Plainfield, N.J., that he is a Second Vice President of The Chase Manhattan Bank, N.A., one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the 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/ DELLA K. BENJAMIN ------------------------------------- [Notary Public] (Seal) DELLA K. BENJAMIN NOTARY PUBLIC, STATE OF NEW YORK NO. 24-4659667 QUALIFIED IN KINGS COUNTY CERTIFICATE FILED IN NEW YORK COUNTY COMMISSION EXPIRES MARCH 30, 1987 EX-4.3 5 INDENTURE, DATED AS OF JANUARY 1, 1992 1 Exhibit 4.3 ================================================================================ ATLANTIC RICHFIELD COMPANY AND THE BANK OF NEW YORK, TRUSTEE --------------------------- INDENTURE Dated as of January 1, 1992 --------------------------- ================================================================================ 2 TIE-SHEET OF PROVISIONS OF TRUST INDENTURE ACT OF 1939 WITH INDENTURE DATED AS OF JANUARY 1, 1992, BETWEEN ATLANTIC RICHFIELD COMPANY AND THE BANK OF NEW YORK, TRUSTEE:
Section of Act Section of Indenture - -------------- -------------------- 310(a)(1) and (2)...................................8.09 310(a)(3) and (4)...................................Not applicable 310(b)..............................................8.08 and 8.10(b) 310(c)..............................................Not applicable 311(a) and (b)......................................8.13 311(c)..............................................Not applicable 312(a)..............................................6.01 and 6.02(a) 312(b) and (c)......................................6.02(b) and (c) 313(a)..............................................6.04(a) 313(b)(1)...........................................Not applicable 313(b)(2)...........................................6.04(b) 313(c)..............................................6.04(c) 313(d)..............................................6.04(d) 314(a)..............................................6.03 314(b)..............................................Not applicable 314(c)(1) and (2)...................................15.07 314(c)(3)...........................................Not applicable 314(d)..............................................Not applicable 314(e)..............................................15.07 315(a), (c) and (d).................................8.01 315(b)..............................................7.08 315(e)..............................................7.09 316(a)(1)...........................................7.01 and 7.07 316(a)(2)...........................................Omitted 316(a) last sentence................................9.04 316(b)..............................................7.04 317(a)..............................................7.02 317(b)..............................................5.07 318(a)..............................................15.09
- ---------- This tie-sheet is not part of the Indenture as executed. 3 TABLE OF CONTENTS -----------------
PAGE ---- PARTIES..........................................................1 RECITALS.........................................................1
ARTICLE ONE. DEFINITIONS. SECTION 1.01. Definitions........................................1 Authorized Newspaper...............................1 Board of Directors.................................2 Business Day.......................................2 Company............................................2 Consolidated Net Tangible Assets...................2 Coupon Security....................................2 Event of Default...................................3 Fully Registered Security..........................3 Holder.............................................3 Indenture..........................................3 Interest...........................................3 Officers' Certificate..............................4 Opinion of Counsel.................................4 Original Issue Date................................4 Original Issue Discount Security...................4 Person.............................................4 Place of Payment...................................5 Principal Office of the Trustee....................5 Registered Coupon Security.........................5 Registered Holder..................................5 Registered Security................................5
4 ii
PAGE ---- Responsible Officer................................5 Restricted Property................................5 Restricted Subsidiary..............................6 Security or Securities Outstanding.................6 Stated Maturity....................................7 Subsidiary.........................................7 Trustee............................................8 Trust Indenture Act of 1939........................8 Unregistered Security..............................8
ARTICLE TWO. THE SECURITIES AND SECURITY FORMS. SECTION 2.01. Amount Unlimited; Issuable in Series...............8 SECTION 2.02. Form of Securities and of Trustee's Certificate of Authentication.................................10 SECTION 2.03. Denomination, Authentication and Dating of Securities......................................11 SECTION 2.04. Execution of Securities...........................12 SECTION 2.05. Registration, Registration of Transfer and Exchange........................................13 SECTION 2.06. Mutilated, Destroyed. Lost or Stolen Securities...15 SECTION 2.07. Temporary Securities..............................16 SECTION 2.08. Cancellation of Securities Paid, etc..............17
ARTICLE THREE. REDEMPTION OF SECURITIES. SECTION 3.01. Applicability of Article..........................17 SECTION 3.02. Notice of Redemption; Selection of Securities.....18 SECTION 3.03. Payment of Securities Called for Redemption.......19
5 iii ARTICLE FOUR. SINKING FUNDS.
PAGE ---- SECTION 4.01. Applicability of Article..........................20 SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with Securities.................................20 SECTION 4.03. Redemption of Securities for Sinking Fund.........20
ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. Payment of Principal, Premium and Interest........22 SECTION 5.02. Offices for Notices and Payments, etc.............22 SECTION 5.03. Limitation on Liens...............................23 SECTION 5.04. Limitation on Sale and Lease-Back.................25 SECTION 5.05. Definition of "Value".............................26 SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office..........................................26 SECTION 5.07. Provision as to Paying Agent......................26 SECTION 5.08. Certificate to Trustee............................28
ARTICLE SIX. HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. Holders Lists.....................................28 SECTION 6.02. Preservation and Disclosure of Lists..............29 SECTION 6.03. Reports by the Company............................30 SECTION 6.04. Reports by the Trustee............................31
ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT. SECTION 7.01. Events of Default.................................33 SECTION 7.02. Payment of Securities on Default; Suit Therefor...36 SECTION 7.03. Application of Moneys Collected by Trustee........38 SECTION 7.04. Proceedings by Holders............................39
6 iv
PAGE ---- SECTION 7.05. Proceedings by Trustee............................40 SECTION 7.06. Remedies Cumulative and Continuing................41 SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Holders..........................41 SECTION 7.08. Notice of Defaults................................42 SECTION 7.09. Undertaking to Pay Costs..........................43
ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.01. Duties and Responsibilities of Trustee............43 SECTION 8.02. Reliance on Documents, Opinions, etc..............45 SECTION 8.03. No Responsibility for Recitals, etc...............46 SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities......................................46 SECTION 8.05. Moneys to be Held in Trust........................46 SECTION 8.06. Compensation and Expenses of Trustee..............46 SECTION 8.07. Officers' Certificate as Evidence.................47 SECTION 8.08. Conflicting Interest of Trustee...................47 SECTION 8.09. Eligibility of Trustee............................54 SECTION 8.10. Resignation or Removal of Trustee.................54 SECTION 8.11. Acceptance by Successor Trustee...................56 SECTION 8.12. Succession by Merger, etc.........................58 SECTION 8.13. Limitation on Rights of Trustee as a Creditor.....58
ARTICLE NINE. CONCERNING THE HOLDERS. SECTION 9.01. Action By Holders.................................63 SECTION 9.02. Proof of Execution by Holders.....................64 SECTION 9.03. Who Deemed Absolute Owners........................64 SECTION 9.04. Company-Owned Securities Disregarded..............65 SECTION 9.05. Revocation of Consents; Future Holders Bound......66
7 v ARTICLE TEN. HOLDERS' MEETINGS.
PAGE ---- SECTION 10.01. Purposes of Meetings.............................66 SECTION 10.02. Call of Meetings by Trustee......................67 SECTION 10.03. Call of Meetings by Company or Holders...........67 SECTION 10.04. Qualification for Voting.........................68 SECTION 10.05. Regulations......................................68 SECTION 10.06. Voting...........................................69 SECTION 10.07. No Delay of Rights by Meeting....................70
ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. Supplemental Indentures without Consent of Holders........................................70 SECTION 11.02. Supplemental Indentures with Consent of Holders..72 SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures........................73 SECTION 11.04. Notation on Securities...........................73 SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee..............73
ARTICLE TWELVE. CONSOLIDATION, MERGER AND SALE. SECTION 12.01. Company May Consolidate, etc., on Certain Terms..74 SECTION 12.02. Securities to be Secured in Certain Events.......74 SECTION 12.03. Successor Corporation to be Substituted..........75 SECTION 12.04. Opinion of Counsel to be Given Trustee...........75
ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE. SECTION 13.01. Discharge of Indenture...........................76 SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee..76 SECTION 13.03. Paying Agent to Repay Moneys Held................77 SECTION 13.04. Return of Unclaimed Moneys.......................77
8 vi ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS.
PAGE ---- SECTION 14.01. Indenture and Securities Solely Corporate Obligations....................................77
ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. Provisions Binding on Company's Successors.......78 SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders....................................78 SECTION 15.03. Official Acts by Successor Corporation...........78 SECTION 15.04. Addresses for Notices, etc.......................78 SECTION 15.05. Notices to Holders; Waiver.......................79 SECTION 15.06. New York Contract................................80 SECTION 15.07. Evidence of Compliance with Conditions Precedent......................................80 SECTION 15.08. Legal Holidays...................................80 SECTION 15.09. Trust Indenture Act to Control...................81 SECTION 15.10. No Security Interest Created.....................81 SECTION 15.11. Table of Contents, Headings, etc.................81 SECTION 15.12. Execution in Counterparts........................81 SECTION 15.13. Acceptance of Trust..............................81
9 1 INDENTURE, dated as of January 1, 1992, between ATLANTIC RICHFIELD COMPANY, a corporation duly organized and existing under the laws of the State of Delaware (the "Company"), and THE BANK OF NEW YORK, a New York corporation authorized to do a banking business (the "Trustee"). RECITAL 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 unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the "Securities"), as provided herein. AGREEMENT For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows: ARTICLE ONE. DEFINITIONS. SECTION 1.01. Definitions. The terms defined in this Section 1.01 (except as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section 1.01. All other terms used in this Indenture which are defined in the Trust Indenture Act of 1939 or which are by reference therein defined in the Securities Act of 1933, as amended, (except as herein otherwise expressly provided or unless the context otherwise requires) shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this Indenture. Authorized Newspaper: The term "Authorized Newspaper" shall mean a newspaper of general circulation printed in the English language and customarily published on 10 2 each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are authorized hereunder, they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or different Authorized Newspapers. Board of Directors: The term "Board of Directors" shall mean the Board of Directors of the Company or any committee of such Board duly authorized to act for such Board. Business Day: The term "Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a legal holiday for banking institutions in The City of New York. Company: The term "Company" shall mean Atlantic Richfield Company, a Delaware corporation, and subject to the provisions of Article Twelve shall include its successors and assigns. Consolidated Net Tangible Assets: The term "Consolidated Net Tangible Assets" shall mean the total amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (a) all current liabilities (excluding any thereof which are by their terms extendible or renewable at the option of the obligor thereon to a time more than 12 months after the time as of which the amount thereof is being computed), and (b) all goodwill, trade names, trademarks, patents, unamortized debt discount and expense and other like intangible assets, all as set forth on the most recent balance sheet of the Company and its consolidated Subsidiaries and computed in accordance with generally accepted accounting principles. Coupon Security: The term "Coupon Security" shall mean any Security authenticated and delivered with one or more interest coupons appertaining thereto. 11 3 Event of Default: The term "Event of Default" shall mean any event specified in Section 7.01, continued for the period of time. if any, and after the giving of the notice, if any, therein designated. Fully Registered Security: The term "Fully Registered Security" shall mean any Security registered as to principal and interest, if any. Holder: The term "Holder," "Holder of Securities," or other similar terms, when used with respect to any Security shall mean a bearer of an Unregistered Security or a Registered Holder of a Registered Security and when used with respect to any coupon, means the bearer thereof. Indenture: The term "Indenture" shall mean this instrument as originally executed or, if amended or supplemented as herein provided, as so amended or supplemented, and shall include the form and terms of particular series of Securities established as contemplated hereunder, provided, however, that if at any time more than one Person is acting as Trustee under this instrument, "Indenture" shall mean with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated by Section 2.01, exclusive, however, of any provisions or terms which relate solely to one or more series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party. Interest: The term "interest" when used with respect to any series of non-interest bearing Securities, shall mean interest payable after maturity. 12 4 Officers' Certificate: The term "Officers' Certificate" shall mean a certificate signed by the Chairman of the Board of Directors, the President, a Chief Operating Officer, or one of its Vice Presidents and by its Treasurer, one of its Assistant Treasurers, the Secretary, an Assistant Secretary, the Controller or an Assistant Controller of the Company. If applicable, each certificate shall include the statements provided for in Section 15.07 if and to the extent required by the provisions of such Section. Such certificate shall also mean a certificate of one of the above officers approving the form, terms and conditions of Securities of a particular series pursuant to Section 2.01. Opinion of Counsel: The term "Opinion of Counsel" shall mean an opinion in writing signed by legal counsel, who may be an employee of, or of counsel to the Company, or may be other counsel. Each such opinion shall include the statements provided for in Section 15.07 if, and to the extent, required by the provisions of such Section. Original Issue Date: The term "original issue date" of any Security (or portion thereof) shall mean the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution. Original Issue Discount Security: The term "Original Issue Discount Security" shall mean 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 7.01. Person: The term "Person" shall mean any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. 13 5 Place of Payment: The term "Place of Payment" for a series of Securities shall mean the Place or Places of Payment designated for each series pursuant to Section 2.01(5). Principal Office of the Trustee: The term "Principal Office of the Trustee," or other similar term, shall mean the principal corporate trust office of the Trustee in the Borough of Manhattan, The City of New York, at which at any particular time its corporate trust business shall be administered and which on the date hereof is at 101 Barclay Street, New York, New York 10286 (except that with respect to presentation of Securities for payment and transfer, such term shall mean the office or agency of the Trustee in said city at which at any particular time its corporate agency business shall be conducted). Registered Coupon Security: The term "Registered Coupon Security" shall mean any Coupon Security registered as to principal only. Registered Holder: The term "Registered Holder," when used with respect to a Registered Security, shall mean the person in whose name such Security is registered on the books of the Company kept for that purpose in accordance with the terms hereof. Registered Security: The term "Registered Security" shall mean any Security registered on the books of the Company. Responsible Officer: The term "Responsible Officer" shall mean any officer to whom any corporate trust matter is referred because of his knowledge of and familiarity with the particular subject. Restricted Property: The term "Restricted Property" shall mean: (a) any property interest owned by the Company or a Subsidiary in land located in the continental United States of America (which for the 14 6 purposes hereof shall include any property located off the coast of the continental United States of America on which the Company or any Subsidiary conducts operations pursuant to leases, rights or other authorizations from the United States of America or any state thereof located within the continental United States of America) and classified by such owner as productive of crude oil, natural gas or other petroleum hydrocarbons in paying quantities; (b) any refining plant or manufacturing plant owned by the Company or a Subsidiary and located in the continental United States of America, except (1) related facilities which in the opinion of the Board of Directors are transportation or marketing facilities, and (2) a refining plant or manufacturing plant which in the opinion of the Board of Directors is not a principal plant of the Company and its Subsidiaries; and (c) any shares of capital stock or indebtedness of a Restricted Subsidiary. Restricted Subsidiary: The term "Restricted Subsidiary" shall mean any Subsidiary which owns any Restricted Property, except a Subsidiary substantially all the physical properties of which are located outside the continental United States of America. Security or Securities outstanding: The terms "Security" or "Securities" shall have the meaning stated in the recital of this Indenture and shall mean any Security or such Securities, as the case may be, authenticated and delivered pursuant to this Indenture; provided, however, that if at any time there is more than one Person acting as Trustee under this instrument, "Securities" with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the recital and shall more particularly mean Securities authenticated and delivered pursuant to this instrument, exclusive of Securities of any series as to which such Person is not Trustee. The term "outstanding," when used with reference to Securities or Securities of any series shall, subject to the provisions of Section 9.04, mean, as of any particular time, all such Securities authenticated and delivered by the Trustee pursuant to this Indenture, except: 15 7 (a) such Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (b) such Securities, or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own paying agent), provided that if such Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been mailed as provided in Article Three, or provision satisfactory to the Trustee shall have been made for mailing such notice; and (c) Securities in lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.06 except to the extent that a bona fide holder in due course of any such Securities shall have presented proof satisfactory to the Trustee that such holder is a bona fide holder in due course of any such Securities. In determining whether the Holders of the requisite principal amount of outstanding Securities of a series have given any request, demand, authorization, direction, notice, consent, or waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the maturity thereof determined in accordance with Section 7.01. Stated Maturity: The term "Stated Maturity" when used with respect to any Security or any installment of interest thereon shall mean the date specified in such Security as the fixed date on which the principal of such Security or such installment of interest is due and payable. Subsidiary: The term "Subsidiary" shall mean any corporation at least a majority of the outstanding securities of which having ordinary voting power to elect a majority of the board of directors of such corporation (whether or not any other class of securities has or might have voting power by reason of the 16 8 happening of a contingency) is at the time owned or controlled directly or indirectly by the Company or one or more Subsidiaries or by the Company and one or more Subsidiaries. Trustee: The term "Trustee" shall mean The Bank of New York, until another or a successor trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter shall mean and include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, "Trustee" as used with respect to the Securities of any series shall mean only the Trustee with respect to the Securities of that series. Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939" shall mean the Trust Indenture Act of 1939 as it was in force at the date of execution of this Indenture, except as provided in Section 11.03. Unregistered Security: The term "Unregistered Security" shall mean any Security or temporary bearer Security not registered as to principal. ARTICLE TWO. THE SECURITIES AND SECURITY FORMS. SECTION 2.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. Securities may be issued in one or more series. The terms and conditions listed below, as applicable, of any series of Securities shall be established (i) in an indenture supplemental hereto, (ii) in a resolution of the Board of Directors or (iii) by the certificate of an officer of the Company pursuant to a resolution of the Board of Directors: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of all other series); (2) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this 17 9 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 Sections 2.05, 2.06, 2.07, 3.03 or 11.04); (3) the date or dates on which the principal and premium, if any, of the Securities of the series are payable; (4) the rate or rates at which the Securities of the series shall bear interest, if any, or the formula by which interest shall be calculated, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders thereof to whom interest is payable; (5) the place or places where the principal of, and premium, if any, and any interest on Securities of the series shall be payable (herein called the "Place of Payment"); provided, however, that payment of principal, premium, if any, and interest with respect to Registered Securities 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 on the registry books of the Company, as defined in Section 2.05; (6) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company, pursuant to any sinking fund or otherwise; (7) the obligation, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation; (8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (9) if other than the principal amount at Stated Maturity thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity 18 10 thereof pursuant to Section 7.01 or provable in bankruptcy pursuant to Section 7.02 or the method by which such portion of the principal amount shall be determined; (10) any Events of Default with respect to the Securities of a particular series, if not set forth herein; (11) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture); and (12) the securities will be issued in such form and such manner so that the Company will not be prohibited from receiving a deduction for interest paid thereon under Section 163(f) of the Internal Revenue Code of 1954, as amended. All Securities of any series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof with respect to such series without preference, priority or distinction on account of actual time or times of authentication and delivery or maturity of the Securities of such series. All Securities of the same series shall be substantially identical except as to denomination and except as may otherwise be provided in (i) an indenture supplemental hereto, (ii) a resolution of the Board of Directors or (iii) a certificate of an officer of the Company pursuant to a resolution of the Board of Directors. SECTION 2.02. Form of Securities and of Trustee's Certificate of Authentication. The Securities of each series, the appurtenant coupons, if any, and the certificates of authentication thereon shall be in substantially the form as shall be established as provided in Section 2.01 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 any law or with any rules made pursuant thereto or with any rules of any securities exchange or as may be determined consistently herewith by the officers executing such Securities and coupons, if any, as evidenced by their execution of the Securities and coupons, if any. The definitive Securities and coupons, if any, shall be printed, lithographed or engraved or produced by any combination of these methods on steel engraved borders or may be produced in any other manner permitted by the rules of any securities exchange, all as determined by the officers executing such Securities and coupons, if any, as evidenced by their execution of such Securities and coupons, if any. 19 11 The form of Trustee's certificate of authentication shall be as follows: TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the Securities issued under the within-mentioned Indenture. THE BANK OF NEW YORK, as Trustee Dated:........................... By....................................... Authorized Signatory SECTION 2.03. Denomination, Authentication and Dating of Securities. The Securities of each series may be issued as registered Securities or unregistered Securities, as provided in the terms of such Securities and shall be issuable in the denominations of $1,000 and any integral multiple of $1,000, or such other denominations as authorized as provided in Section 2.01. Each Security shall be dated as of the date of its authentication. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication. Except as otherwise provided in this Article Two, the Trustee shall thereupon authenticate and deliver said Securities to or upon the written order of the Company, signed by the Chairman of the Board, its President, a Chief Operating Officer, or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers. 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 8.01, shall be fully protected in relying upon: (1) A copy of the resolution or resolutions of the Board of Directors in or pursuant to which the terms and form of the Securities were established, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect as of the date of such certificate, and if the terms and form of such Securities are established by the certificate of an 20 12 officer of the Company pursuant to general authorization of the Board of Directors, an Officers' Certificate setting forth the action taken pursuant to such authorization; (2) an executed supplemental indenture, if any; (3) an Officers' Certificate delivered in accordance with Section 15.07; and (4) an Opinion of Counsel which shall state: (a) that the form of such Securities has been established by a supplemental indenture or by or pursuant to a resolution of the Board of Directors in accordance with Section 2.02 and in conformity with the provisions of this Indenture; (b) that the terms of such Securities have been established in accordance with Section 2.01 and in conformity with the other provisions of this Indenture; (c) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and (d) that all laws and requirements in respect of the execution and delivery by the Company of such Securities have been complied with. The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or vice presidents shall determine that such action would expose the Trustee to personal liability to existing Holders. SECTION 2.04. Execution of Securities. The Securities, and any coupons appertaining thereto, shall be signed in the name and on behalf of the Company manually or by facsimile by its Chairman of the Board of 21 13 Directors, its President, a Chief Operating Officer, or one of its Vice Presidents and by its Treasurer or one of its Assistant Treasurers, under its corporate seal (which may be printed, engraved or otherwise reproduced thereon, by facsimile or otherwise). Only such Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed manually by the Trustee, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Company shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the Holder is entitled to the benefits of this Indenture. In case any officer of the Company who shall have signed any of the Securities shall cease to be such officer before the Securities so signed shall have been authenticated and delivered by the Trustee, or disposed of by the Company, such Securities nevertheless may be authenticated and delivered or disposed of as though the person who signed such Securities had not ceased to be such officer of the Company; and any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date of the execution of such Securities or coupons, shall be the proper officers of the Company, although at the date of the execution of this Indenture any such person was not such an officer. SECTION 2.05. Registration, Registration of Transfer and Exchange. The Company shall keep or cause to be kept a register (herein sometimes referred to as the "registry books of the Company") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and the registration of transfers of Registered Securities. Any such register shall be in written form or in any other form capable of being converted into written form within a reasonable time. At all reasonable times the information contained in such register or registers shall be available for inspection by the Trustee at the office or agency to be maintained by the Company as provided in Section 5.02. Upon surrender of any Registered Security of any series for registration of transfer at the office or agency of the Company to be maintained as provided in Section 5.02, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of such series of any 22 14 authorized denominations and of a like aggregate principal amount and Stated Maturity. At the option of the Holder thereof, Securities of a series, whether Registered or Unregistered, which by their terms are registrable as to principal only or as to principal and interest, may be exchanged for Registered Coupon Securities or Fully Registered Securities of such series, as may be issued by the terms thereof. At the option of the Holder thereof, Securities of a series, whether Registered or Unregistered, which by their terms provide for the issuance of Unregistered Securities, may be exchanged for Unregistered Securities of such series. Securities so issued in exchange for other Securities shall be of any authorized denomination and of like principal amount and Stated Maturity and shall be issued upon surrender of the Securities for which they are to be exchanged and, in the case of Coupon Securities, together with all unmatured coupons and all matured coupons in default appertaining thereto, at the office of the Company provided for in Section 5.02 and upon payment, if the Company shall require, of charges provided herein. Whenever any Securities are so surrendered, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making such exchange is entitled to receive. Upon presentation for registration of any Unregistered Security of any series which by its terms is registrable as to principal, at the office or agency of the Company to be maintained as provided in Section 5.02, such Security shall be registered as to principal in the name of the Holder thereof and such registration shall be noted on such Security. Any Security so registered shall be transferable on the registry books of the Company, upon presentation of such Security at such office or agency for similar notation thereon, but such Security may be discharged from registration by being in like manner transferred to bearer, whereupon transferability by delivery shall be restored. Unregistered Securities shall continue to be subject to successive registrations and discharges from registration at the option of the Holders thereof. Unregistered Securities shall be transferable by delivery. Registration of any Coupon Security shall not affect the transferability by delivery of the coupons appertaining thereto which shall continue to be payable to bearer and transferable by delivery. 23 15 All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or 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 duly executed, by the Holder thereof or his attorney duly authorized in writing. Unless otherwise provided in the Securities to be transferred or exchanged, 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 relation thereto. The Company shall not be required (i) to issue, register the transfer of or exchange any Securities of any series for a period of 15 days next preceding any selection of Securities of such series to be redeemed, or (ii) to register the transfer or exchange of any Securities so selected for redemption in whole or in part except, in the case of any Security to be redeemed in part, the portion thereof not to be so redeemed. SECTION 2.06. Mutilated, Destroyed, Lost or Stolen Securities. In case any temporary or definitive Security or any coupon appurtenant to a Coupon Security shall become mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon written authorization or request of any officer of the Company, the Trustee shall authenticate and deliver, a new Security (in the case of a Coupon Security, with coupons corresponding to the coupons appertaining to the mutilated, destroyed, lost or stolen Security or the Security with respect to which a coupon shall have become mutilated, destroyed, stolen or lost) of the same series and of like tenor and principal amount at Stated Maturity bearing a number not contemporaneously outstanding. In every case the applicant for a substituted Security shall furnish to the Company and to the Trustee such security or indemnity as may be required by them to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Company and to the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof. In every case of 24 16 mutilation, the applicant shall surrender to the Trustee, the mutilated Security or the Security to which the mutilated coupon appertains, in the case of a Coupon Security, with all coupons (including any mutilated coupons) appertaining thereto. Upon the issuance of any substituted Security, 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 connected therewith. In case any Security or coupon which has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security or coupon, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated Security or coupon) if the applicant for such payment shall furnish the Company and the Trustee with such security or indemnity as may be required by them to save each of them harmless and, in case of destruction, loss or theft, evidence satisfactory to the Company and the Trustee of the destruction, loss or theft of such Security or coupon and of the ownership thereof. Every substituted Security, and in the case of Coupon Securities, its appurtenant coupons, issued pursuant to the provisions of this Section 2.06 by virtue of the fact that any Security or coupon of that series is destroyed, lost or stolen shall constitute an additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security or coupon of that series shall be found at any time, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities and coupons of that series duly issued hereunder. All Securities and coupons shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities and coupons and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender. SECTION 2.07. Temporary Securities. Pending the preparation of definitive Securities of any series the Company may execute and the Trustee shall authenticate and deliver printed or lithographed temporary Securities. Temporary Securities shall be issuable in any authorized denomination, and 25 17 substantially in the form of the definitive Securities of that series, but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Company. Every such temporary Security of any series shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with the same effect, as the definitive Securities of that series. Without unreasonable delay, the Company will execute and deliver to the Trustee definitive Securities of that series and thereupon any or all temporary Securities of that series may be surrendered in exchange therefor, at the Principal Office of the Trustee, and the Trustee shall authenticate and deliver in exchange for such temporary Securities an equal aggregate principal amount at Stated Maturity of definitive Securities. Such exchange shall be made by the Company at its own expense and without any charge therefor except that the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of that series authenticated and delivered hereunder. SECTION 2.08. Cancellation of Securities Paid, etc. Securities of any series surrendered for the purpose of payment, redemption, exchange or registration of transfer and all coupons surrendered for payment, shall, if surrendered to the Company or any paying agent, be surrendered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be cancelled by it, and no Securities or coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture or of such series of Securities. The Trustee shall destroy cancelled Securities or coupons and deliver a certificate of such destruction to the Company. If the Company shall acquire any of the Securities or coupons, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities or coupons unless and until the same are surrendered to the Trustee for cancellation. ARTICLE THREE. REDEMPTION OF SECURITIES. SECTION 3.01. Applicability of Article. The Company may reserve the right to redeem and pay, prior to Stated Maturity, all or any part of the 26 18 Securities of any series, either by optional redemption, sinking fund or otherwise, by provision therefor in the Security for such series established pursuant to Sections 2.01 and 2.02. Redemption of Securities of any series shall be made in accordance with the terms of such Securities and, to the extent that this Article does not conflict with such terms, in accordance with this Article. SECTION 3.02. Notice of Redemption; Selection of Securities. In case the Company shall desire to exercise the right to redeem all or any part of the Securities of a series in accordance with their terms, it shall fix a date for redemption and shall mail a notice of such redemption at least 30 and not more than 60 days prior to the date fixed for redemption to each Holder of a Registered Security to be redeemed as a whole or in part at his address as the same appear on the registry books of the Company and, if Unregistered Securities are to be redeemed, shall publish a notice of redemption at least 30 and not more than 60 days prior to the date fixed for redemption in an Authorized Newspaper in the Place of Payment. If mailed in the manner herein provided, the notice shall be conclusively presumed to have been duly given, whether or not any such Holder receives such notice. Any defect in the notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Each such notice of redemption shall specify the date fixed for redemption, the redemption price, the place where such Securities are to be surrendered for payment of the redemption price, which shall be the office or agency of the Company in each Place of Payment, that payment will be made upon presentation and surrender of such Securities and all coupons appertaining thereto, if any, that accrued interest, if any, to the redemption date will be paid as specified in said notice, and that on and after said date, interest thereon or on the portions thereof to be redeemed win cease to accrue. In case the redemption is on account of a sinking fund, said notice shall so specify. If less than all the outstanding Securities of a series are to be redeemed, the notice of redemption shall specify the numbers of the Securities of that series to be redeemed. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of that series in the principal amount and Stated Maturity equal to the unredeemed portion thereof will be issued. 27 19 If fewer than all the Securities of a series are to be redeemed, the Company shall give the Trustee notice not less than 60 days prior to the redemption date as to the aggregate principal amount at Stated Maturity of Securities to be redeemed, and the Trustee shall select from the Securities outstanding in such manner as in its sole discretion it shall deem appropriate and fair, the Securities of that series or portions thereof to be redeemed. Securities of a series may be redeemed in part only in multiples of $1,000, except as otherwise set forth in the form of Security to be redeemed. Any notice of redemption to be mailed by the Company pursuant to this Section 3.02 may be mailed, at the Company's direction, by the Trustee in the name and at the expense of the Company. SECTION 3.03. Payment of Securities Called for Redemption. If notice of redemption has been mailed or published, as the case may be as above provided, the Securities or portions of Securities of a series with respect to which such notice has been mailed or published shall become due and payable on the date and at the place or places stated in such notice at the applicable redemption price, together with accrued interest to the redemption date and on and after said date (unless the Company shall default in the payment of such Securities at the applicable redemption price, together with accrued interest, if any, to said date) any interest on the Securities or portions of Securities of any series so called for redemption shall cease to accrue, and such Securities and portions of Securities of any series shall be deemed not to be outstanding hereunder and shall not be entitled to any benefit under this Indenture except to receive payment of the redemption price, together with accrued interest, if any, to the date fixed for redemption. On the redemption date specified in the notice of redemption, the Company shall deposit with the Trustee or with one or more paying agents an amount of money, in immediately available funds, sufficient to redeem on the redemption date all the Securities so called for redemption at the applicable redemption price, together with accrued interest, if any, to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, the said Securities or the specified portions thereof shall be paid and redeemed by the Company at the applicable redemption price, together with accrued interest, if any, to the date fixed for redemption. 28 20 Upon presentation of any Security redeemed in part only, the Company shall execute and the Trustee, upon the written request or order of any officer of the Company, shall authenticate and deliver to the Holder thereof, at the expense of the Company, a new Security or Securities of such series, of authorized denominations in aggregate principal amount and Stated Maturity equal to the unredeemed portion of the Security so presented. ARTICLE FOUR. SINKING FUNDS. SECTION 4.01. Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.01 for Securities of such series. The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a "mandatory sinking fund payment," and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an "optional sinking fund payment." SECTION 4.02. Satisfaction of Mandatory Sinking Fund Payments with Securities. In lieu of making all or any part of any mandatory sinking fund payment with respect to any Securities of a series in cash, the Company may at its option (a) deliver to the Trustee Securities of that series theretofore purchased or otherwise acquired by the Company, or (b) receive credit for the principal amount of Securities of that 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; provided, however, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the redemption price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly. SECTION 4.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each sinking fund payment date for any series of Securities, 29 21 the Company will deliver to the Trustee an Officers' Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of that series, 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 of that series pursuant to Section 4.02, which Securities will accompany such certificate, if not theretofore delivered, and whether the Company intends to exercise its right to make a permitted optional sinking fund payment with respect to such series. Such certificate shall also state that no Event of Default with respect to such series has occurred and is continuing. Any mandatory or optional sinking fund payment or payments made in cash plus any unused balance of any preceding sinking fund payments made in cash which shall equal or exceed $50,000 (or a lesser sum if the Company shall so request) with respect to Securities of any particular series shall be applied by the Trustee on the sinking fund payment date on which such payment is made (or, if such payment is made prior to a sinking fund payment date, on the sinking fund payment date following the date of such payment) to the redemption of such Securities at the redemption price specified in such Securities for operation of the sinking fund together with accrued interest to the date fixed for redemption. Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities shall be added to the next cash sinking fund payment received by the Trustee for such series and, together with such payment, shall be applied in accordance with the provisions of this Section 4.03. Any and all sinking fund moneys with respect to the Securities of any particular series held by the Trustee on the last sinking fund payment date with respect to such Securities, and not held for the payment or redemption of particular Securities, shall be applied by the Trustee, to the payment of the principal of the Securities of that series at maturity. The Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in the penultimate paragraph of Section 3.02 and the Company shall cause notice of the redemption thereof to be given in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Section 3.03. 30 22 On each sinking fund payment date, the Company shall pay to the Trustee in immediately available funds a sum equal to all accrued interest to the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 4.03. The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail or publish any notice of redemption of such Securities by operation of the sinking fund for such series during the continuance of a default in payment of interest on such Securities or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph), except that if the notice of redemption of any such Securities shall theretofore have been mailed or published in accordance with the provisions hereof, the Trustee shall redeem Securities if cash sufficient for that purpose shall be deposited with the Trustee for that purpose in accordance with the terms of this Article Four. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur and any moneys thereafter paid into such sinking fund shall, during the continuance of such default or Event of Default, be held as security for the payment of all Securities of such series; provided, however, that in case such default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the next sinking fund payment date for such Securities on which such moneys may be applied pursuant to the provisions of this Section 4.03. ARTICLE FIVE. PARTICULAR COVENANTS OF THE COMPANY. SECTION 5.01. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of the Securities that it will duly and punctually pay or cause to be paid the principal of and premium, if any, and interest, if any, on the Securities of that series in accordance with the terms thereof and this Indenture and will comply with all other forms, agreements and conditions contained in or made in this Indenture for the benefit of such Securities. SECTION 5.02. Offices for Notices and Payments, etc. So long as any Securities of any series remain outstanding, the Company will maintain in 31 23 the Borough of Manhattan, The City of New York, a Place of Payment as an office or agency where the Securities of that series may be presented for payment, an office or agency where the Securities of that series may be presented for registration of transfer and for exchange as provided in this Indenture and an office or agency where notices and demands to or upon the Company in respect of the Securities of that series or of this Indenture may be served; provided, however, that in the case of any Security issued in bearer form in the Eurodollar Market, the office for payment of bearer Securities and coupons appertaining thereto will be located in London, England. The Company will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. In case the Company shall fail to maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made at the Principal Office of the Trustee (or at any other address previously furnished in writing to the Company by the Trustee) and notices may be served at the Principal Office of the Trustee. The Company initially appoints the Trustee its agent for payment, for registration of transfers, for exchange of the Securities and where notices and demands may be served upon the Company. Notwithstanding any other provisions to the contrary, the Company at its option may make payment of Registered Securities by mail as provided in Section 2.01. SECTION 5.03. Limitation on Liens. Nothing in this Indenture or in the Securities shall in any way restrict or prevent the Company or any Subsidiary from incurring any indebtedness; provided that the Company covenants and agrees that neither it nor any Restricted Subsidiary will issue, assume or guarantee any notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (notes, bonds, debentures or other similar evidences of indebtedness for money borrowed being hereinafter in this Article Five called "Debt") secured by mortgage, lien, pledge or other encumbrance (mortgages, liens, pledges or other encumbrances being hereinafter in this Article Five called "Mortgages") upon any Restricted Property, without effectively providing that the Securities of each series then outstanding and thereafter created (together with, if the Company so determines, any other indebtedness or obligation then existing and any other indebtedness or obligation thereafter created ranking equally with the Securities then existing or thereafter created which is not subordinated to the Securities of each series) shall be secured equally and ratably with (or prior to) such Debt so long as such Debt shall be so secured, except that the foregoing provisions shall not apply to: 32 24 (a) Mortgages affecting property of a corporation existing at the time it becomes a Subsidiary or at the time it is merged into or consolidated with the Company or a Subsidiary; (b) Mortgages on property existing at the time of acquisition thereof or incurred to secure payment of all or part of the purchase price thereof or to secure Debt incurred prior to, at the time of or within 24 months after acquisition thereof for the purpose of financing all or part of the purchase price thereof; (c) Mortgages on property to secure all or part of the cost of exploration, drilling or development thereof or (in the case of property which is, in the opinion of the Board of Directors, substantially unimproved for the use intended by the Company) all or part of the cost of improvement thereof, or to secure Debt incurred to provide funds for any such purpose; (d) Mortgages which secure only an indebtedness owing by a Subsidiary to the Company or a Subsidiary; (e) Mortgages in favor of the United States or any state thereof, or any department, agency, instrumentality, or political subdivision of any such jurisdiction, to secure partial, progress, advance or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of constructing or improving the property subject thereto, including, without limitation, Mortgages to secure Debt of the pollution control or industrial revenue bond type; or (f) any extension, renewal or replacement (or successive extensions, renewals or replacements), in whole or in part, of any Mortgage referred to in the foregoing clauses (a) to (e) inclusive or of any Debt secured thereby, provided that the principal amount of Debt secured thereby shall not exceed the principal amount of Debt so secured at the time of such extension, renewal or replacement, and that such extension, renewal or replacement Mortgage shall be limited to all or part of substantially the same property which secured the Mortgage extended, renewed or replaced (plus improvements on such property). Notwithstanding the foregoing provisions of this Section 5.03, the Company and any one or more Restricted Subsidiaries may issue, assume or guarantee Debt secured by Mortgages which would otherwise be subject to 33 25 the foregoing restrictions in an aggregate principal amount which, together with the aggregate outstanding principal amount of all other Debt of the Company and its Restricted Subsidiaries which would otherwise be subject to the foregoing restrictions (not including Debt permitted to be secured under clauses (a) to (f) inclusive above) and the aggregate Value, as defined in Section 5.05, of the Sale and Lease-Back Transactions, as defined in Section 5.04, in existence at such time (not including Sale and Lease-Back Transactions as to which the Company has complied with Section 5.04(b)), does not at any one time exceed 10% of the Consolidated Net Tangible Assets of the Company and its consolidated Subsidiaries. The following types of transactions, among others, shall not be deemed to create Debt secured by Mortgage: (1) the sale or other transfer of oil, gas or other minerals in place for a period of time until, or in an amount such that, the transferee will realize therefrom a specified amount (however determined) of money or such minerals, or the sale or other transfer of any other interest in property of the character commonly referred to as a production payment; and (2) Mortgages required by any contract or statute in order to permit the Company or a Subsidiary to perform any contract or subcontract made by it with or at the request of the United States of America, any State or any department, agency or instrumentality of either. SECTION 5.04. Limitation on Sale and Lease-Back. The Company covenants and agrees that neither it nor any Restricted Subsidiary will enter into any arrangement with any Person (other than the Company or a Subsidiary), or to which any such Person is a party, providing for the leasing to the Company or a Restricted Subsidiary for a period of more than three years of any Restricted Property which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person (other than the Company or a Subsidiary), to which funds have been or are to be advanced by such Person on the security of the leased property (in this Article Five called "Sale and Lease-Back Transactions") unless either; (a) the Company or such Restricted Subsidiary would be entitled, pursuant to the provisions of Section 5.03, to incur Debt in a principal amount equal to or exceeding the Value of such Sale and Lease-Back 34 26 Transaction secured by Mortgage on the property to be leased, without equally and ratably securing the Securities; or (b) the Company (and in any such case the Company covenants and agrees that it will do so) during or immediately after the expiration of four months after the effective date of such Sale and Lease-Back Transaction (whether made by the Company or a Restricted Subsidiary) applies to the voluntary retirement of indebtedness of the Company (including Securities, provided that Securities may only be redeemed at the redemption prices and in accordance with the other provisions of the form thereof), maturing by the terms thereof more than one year after the original creation thereof and ranking at least pari passu with the Securities (hereinafter in this Section called "Funded Debt") an amount equal to the Value of such Sale and Lease-Back Transaction, less the principal amount of Securities delivered, within four months after the effective date of such arrangement to the Trustee for retirement and cancellation and the principal amount of other Funded Debt voluntarily retired by the Company within such four-month period, excluding retirements of Securities and other Funded Debt as a result of conversions or pursuant to mandatory sinking fund or prepayment provisions or by payment at maturity. SECTION 5.05. Definition of "Value." For purposes of Sections 5.03 and 5.04, the term "Value" shall mean, with respect to a Sale and Lease-Back Transaction, as of any particular time, the amount equal to the greater of (1) the net proceeds of the sale or transfer of the property leased pursuant to such Sale and Lease-Back Transaction or (2) the fair value, in the opinion of the Board of Directors, of such property at the time of entering into such Sale and Lease-Back Transaction, in either case divided first by the number of full years of the term of the lease and then multiplied by the number of full years of such term remaining at the time of determination, without regard to any renewal or extension options contained in the lease. SECTION 5.06. Appointments to Fill Vacancies in Trustee's Office. The Company, whenever necessary to avoid or fill a vacancy in the office of Trustee for any one or more series of Securities, will appoint a Trustee, in the manner provided in Section 8.10 so that there shall at all times be a Trustee with respect to each series of Securities hereunder. SECTION 5.07. Provision as to Paying Agent. (a) If the Company shall appoint a paying agent other than the Trustee with respect to the Securities 35 27 of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 5.07 (1) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest, if any, on the Securities of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such series) in trust for the benefit of the Holders of the Securities of such series; and (2) that it will give the Trustee notice of any failure by the Company (or by any other obligor on the Securities of such series) to make any payment of the principal of and premium, if any, or interest, if any, on the Securities of such series when the same shall be due and payable. (b) If the Company shall act as its own paying agent with respect to the Securities of any series it will, on or prior to each due date of the principal of and premium, if any, or interest, if any, on any of the Securities of such series, set aside, segregate and hold in trust for the benefit of the Holders of such Securities or the coupons appertaining thereto, as the case may be, a sum sufficient to pay such principal and premium, if any, or interest, if any, so becoming due and will notify the Trustee of any failure to take such action and of any failure by the Company (or by any other obligor under such Securities) to make any payment of the principal of and premium, if any, or interest, if any, on such Securities when the same shall become due and payable. (c) Whenever the Company shall have one or more paying agents with respect to the Securities of any series it will deposit with a paying agent, on each due date of the principal of and premium, if any, or interest, if any, on any Securities of such series, a sum in immediately available funds sufficient to pay the principal and premium, if any, or interest, if any, so becoming due, such sum to be held in trust for the benefit of the Holders of such Securities or the coupons appertaining thereto, as the case may be, entitled to such principal, premium or interest, and (unless such paying agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act; provided, however, that in the case of any payment of principal, premium, if any, or interest on any Security issued in bearer form in the Eurodollar Market, the Company will deposit with the paying agent, on the Business Day next preceding the due date in funds available on the due date the principal of, premium, if any, or interest on said Security. (d) Anything in this Section 5.07 to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining a satisfaction and 36 28 discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by it, or any paying agent hereunder, as required by this Section 5.07, such sums to be held by the Trustee upon the trusts herein contained. (e) Anything in this Section 5.07 to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section 5.07 is subject to Sections 13.03 and 13.04. SECTION 5.08. Certificate to Trustee. The Company will deliver to the Trustee on or before September 1 in each year during which any Securities are outstanding hereunder (beginning with respect to Securities of each series with the September 1 next following the issue date of any series of Securities) an Officers' Certificate stating that in the course of the performance by the signers of their duties as officers of the Company they would normally have knowledge of any default by the Company in the performance of any covenants contained in Sections 5.03, 5.04, 12.01 or 12.02, stating whether or not they have knowledge of any such default and, if so, specifying each such default of which the signers have knowledge and the nature thereof. ARTICLE SIX. HOLDERS LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE. SECTION 6.01. Holders Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee, with respect to the Registered Securities of each series (i) semi-annually, not later than each interest payment date for such series and on dates to be determined pursuant to Section 2.01 for non-interest bearing Securities in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders, as of the respective record dates therefor, and on dates to be determined pursuant to Section 2.01 for non-interest bearing Securities, and (ii) at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list in such form as the Trustee may reasonably require of the names and addresses of the Holders as of a date not more than 15 days prior to the time such information is 37 29 furnished; provided, however, that so long as the Trustee shall be the registrar of a series of Securities all of which are Registered Securities, such list shall not be required to be furnished in respect of that series. SECTION 6.02. Preservation and Disclosure of Lists. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the Holders of Registered Securities of any series contained in the most recent list furnished to it as provided in Section 6.01 or received by the Trustee in its capacity as Securities registrar. The Trustee may destroy any list furnished to it as provided in Section 6.01 upon receipt of a new list so furnished. (b) In case three or more Holders of Securities of the same series (hereinafter referred to as "applicants") apply in writing to the Trustee and furnish to the Trustee reasonable proof that each such applicant has owned a Security of such series for a period of at least six months preceding the date of such application, and such application states that the applicants desire to communicate with other Holders of Securities of such series or with Holders of Securities of all series with respect to their rights under this Indenture or under such Securities and is accompanied by a copy of the form of proxy or other communication which such applicants propose to transmit for such purpose, then the Trustee shall, within five business days after the receipt of such application, at its election, either (1) afford such applicants access to the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02, or (2) inform such applicants as to the approximate number of Holders of Securities of such series or of all series, as the case may be, whose names and addresses appear in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) of this Section 6.02 and as to the approximate cost of mailing to such Holders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to each Holder of a Security of such series or of all series, as the case may be, whose name and address appears in the information preserved at the time by the Trustee in accordance with the provisions of subsection (a) 38 30 of this Section 6.02, a copy of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of mailing, unless within five days after such tender, the Trustee shall mail to such applicants and file with the Securities and Exchange Commission, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Holders of Securities of such series or of all series, as the case may be, or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. If said Commission, after opportunity for a hearing upon the objections specified in the written statement so filed, shall enter an order refusing to sustain any of such objections or if, after the entry of an order sustaining one or more of such objections, said Commission shall find, after notice and opportunity for hearing, that all the objections so sustained have been met and shall enter an order so declaring, the Trustee shall mail copies of such material to all such Holders with reasonable promptness after the entry of such order and the renewal of such tender; otherwise, the Trustee shall be relieved of any obligation or duty to such applicants respecting their application. (c) Each Holder of any Security or coupon or both, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any paying agent shall be held accountable by reason of the disclosure of the name and address of such Holder in accordance with the provisions of subsection (b) of this Section 6.02, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under said subsection (b). SECTION 6.03. Reports by the Company. (a) The Company covenants and agrees to file with the Trustee, within 15 days after the Company is required to file the same with the Securities and Exchange Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as said Commission may from time to time by rules and regulations prescribe) which the Company may be required to file with said Commission pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934; or, if the Company is not required to file information, documents or reports 39 31 pursuant to either of such sections, then to file with the Trustee and said Commission, in accordance with rules and regulations prescribed from time to time by said Commission, such of the supplementary and periodic information, documents and reports which may be required pursuant to section 13 of the Securities Exchange Act of 1934 in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. (b) The Company covenants and agrees to file with the Trustee and the Securities and Exchange Commission, in accordance with the rules and regulations prescribed from time to time by said Commission, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in this Indenture as may be required from time to time by such rules and regulations. (c) The Company covenants and agrees to transmit by mail to each Holder of Securities, in the manner and to the extent provided in Section 6.04, within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to be filed by the Company pursuant to subsections (a) and (b) of this Section 6.03 as may be required by rules and regulations prescribed from time to time by the Securities and Exchange Commission. SECTION 6.04. Reports by the Trustee. (a) On or before December 15 in every year after the first series of Securities is issued hereunder, so long as any Securities are outstanding hereunder, the Trustee shall transmit to the Holders, as hereinafter in this Section 6.04 provided, a brief report dated as of the preceding October 15 with respect to: (1) its eligibility under Section 8.09 and its qualification under Section 8.08 or in lieu thereof, if to the best of its knowledge it has continued to be eligible and qualified under such Sections, a written statement to such effect; (2) the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Securities, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to state such advances if such advances so remaining unpaid aggregate not 40 32 more than 1/2 of 1% of the principal amount at Stated Maturity of the Securities outstanding on the date of such report; (3) the amount, interest rate, and maturity date of all other indebtedness owing by the Company (or by any other obligor on the Securities) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor, except an indebtedness based upon a creditor relationship arising in any manner described in paragraphs (2), (3), (4) or (6) of subsection (b) of Section 8.13, (4) the property and funds, if any, physically in the possession of the Trustee, as such, on the date of such report; (5) any additional issue of Securities which the Trustee has not previously reported; and (6) any action taken by the Trustee in the performance of its duties under this Indenture which it has not previously reported and which in its opinion materially affects any of the Securities, except action in respect of a default, notice of which has been or is to be withheld by it in accordance with the provisions of Section 7.08. (b) The Trustee shall transmit to the Holders, as hereinafter provided, a brief report with respect to the character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such), since the date of the last report transmitted pursuant to the provisions of subsection (a) of this Section 6.04 (or, if no such report has yet been so transmitted, since the date of execution of this Indenture), for the reimbursement of which it claims or may claim a lien or charge prior to that of the Securities, on property or funds held or collected by it as Trustee, and which it has not previously reported pursuant to this subsection, except that the Trustee shall not be required (but may elect) to report such advances if such advances remaining unpaid at any time aggregate 10% or less of the principal amount of Securities at Stated Maturity outstanding at such time, such report to be transmitted within 90 days after such time. (c) Reports pursuant to this Section shall be transmitted by mail: (1) to all Registered Holders of Securities, as the names and addresses of such Holders appear in the registry books of the Company; 41 33 (2) to such Holders of Securities as have, within the two years preceding such transmission, filed their names and addresses with the Trustee for that purpose; and (3) except in the case of reports pursuant to subsection (b) of this Section, to each Holder whose name and address is preserved at the time by the Trustee, as provided in Section 6.02. (d) 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 the Securities are listed and also with the Securities and Exchange Commission. The Company will notify the Trustee when any Securities are listed on any stock exchange. ARTICLE SEVEN. REMEDIES OF THE TRUSTEE AND HOLDERS ON EVENT OF DEFAULT. SECTION 7.01. Events of Default. "Event of Default," whenever used herein with respect to Securities of any series means each one of the following events unless it is either inapplicable to a particular series or it is specifically deleted or modified in the supplemental indenture under which such series of Securities is issued, if any, or in the form of Security for such series: (a) default in the payment of any installment of interest upon any Security of that series when the same becomes due and payable, and continuance of such default for a period of 30 days; or (b) default in the payment of the principal of or premium, if any, on any Securities of that series as and when the same shall become due and payable either at maturity, upon redemption, by declaration or otherwise; or (c) default in the payment of any sinking fund installment or analogous obligation as and when the same shall become due and payable by the terms of that series, and continuance of such default for a period of 30 days; or (d) failure on the part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company in the 42 34 Securities of such series or in this Indenture (other than a covenant or agreement in respect of the Securities of such series a default in the performance of which or the breach of which is elsewhere in this Section 7.01 specifically provided for or which has expressly been included in this Indenture solely for the benefit of one or more series of Securities other than such series), and continuance of such default or breach for a period of 90 days after the date on which written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in aggregate principal amount at Stated Maturity of the Securities of that series at the time outstanding; or (e) if there shall be entered a decree or order by a court having jurisdiction for relief in respect of the Company under the Federal Bankruptcy Code, as now constituted or as hereafter amended, or any other applicable Federal or State bankruptcy law or other similar law, or appointing a receiver, trustee or liquidator, or other similar official of the Company or of any substantial part of its property, or ordering the windingup or liquidation of its affairs and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (f) if the Company shall file a petition or an answer or consent seeking relief under the Federal Bankruptcy Code, as now constituted or as hereinafter amended, or any other applicable Federal or State bankruptcy law or other similar law, or shall consent to the institution of proceedings thereunder or to the filing of any such petition or to the appointment or taking possession by a receiver, trustee, custodian or other similar official of the Company or of any substantial part of its property, or the Company shall make an assignment for the benefit of creditors generally or shall admit in writing to its inability to pay its debts generally as they become due; or (g) any other Event of Default provided in the form of Security for such series, or in the supplemental indenture under which such series of Securities is issued, if any. If an Event of Default described in clauses (a), (b), (c) or (g) with respect to Securities of any series at the time outstanding, then and in each and every such case, unless the principal of all the Securities of such series shall have already become due and payable, either the Trustee or the Holders of 43 35 not less than 25% in aggregate principal amount at Stated Maturity of the Securities of such series then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (in the case of Securities that are Original Issue Discount Securities. such principal amount as may be determined in accordance with the terms of that series) of all the Securities of such series to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities of such series contained to the contrary notwithstanding. If an Event of Default described in clauses (d), (e) or (f) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount at Stated Maturity of all the Securities then outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by Holders), may declare the principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the principal amount as may be determined in accordance with the terms of that series) of all the Securities to be due and payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in this Indenture or in the Securities contained to the contrary notwithstanding. The foregoing provisions are, however, subject to the condition that if, at any time after the principal amount (in the case of Securities that are Original Issue Discount Securities, such portion of the principal amount as may be determined in accordance with the terms of that series) of the Securities of any series or of all the Securities, as the case may be, shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series or of all of the Securities, as the case may be, and the principal of and premium, if any, on all Securities of such series or of all the Securities, as the case may be, which shall have become due otherwise than by acceleration (with interest on overdue installments of interest, to the extent that payment of such interest is enforceable under applicable law, and on such principal and premium, if any, at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities) borne by the Securities of such series or at the rates of interest or yields to maturity of all 44 36 the Securities, as the case may be, to the date of such payment or deposit) and the reasonable expenses of the Trustee, and any and all defaults under this Indenture, other than the nonpayment of principal of or premium, if any, or accrued interest, if any, on Securities of such series or of all of the Securities, as the case may be, which shall have become due by acceleration, shall have been remedied--then and in every such case the Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of such series or of all of the Securities, as the case may be, then outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect to that series or of all of the Securities, as the case may be, and rescind and annul such declaration and its consequences; but no waiver or rescission and annulment shall extend to or shall affect any subsequent default, or shall impair any right consequent thereon. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceeding had been taken. SECTION 7.02. Payment of Securities on Default; Suit Therefor. The Company covenants that in case (1) default shall be made in the payment of any installment of interest upon any Security of any series as and when the same shall become due and payable, and such default shall have continued for a period of 30 days, or (2) default shall be made in the payment of the principal of or premium, if any, on any Security of any series as and when the same shall have become due and payable, whether at maturity of Securities of that series or otherwise, or (3) default is made in the making or satisfaction of any sinking fund payment or analogous obligation when the same becomes due by the terms of the Securities of any series and such default shall continue for a period of 30 days--then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the Holder of any such Security, the whole amount that then shall have become due and payable on any such Security for principal and premium, if any, or interest, if any, or both, as the case may be, with interest upon the overdue principal and premium, if any, and (to the extent that payment of 45 37 such interest is enforceable under applicable law) upon the overdue installments of interest at the rate of interest or yield to maturity (in the case of Original Issue Discount Securities) borne by any such Security and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee, its agents, attorneys and counsel, and any expenses or liabilities incurred by the Trustee hereunder other than through its negligence or bad faith. In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property, wherever situated, of the Company or any other obligor upon such Securities. In case there shall be pending proceedings for the bankruptcy or for the reorganization of the Company or any other obligor on the Securities of any series under the Federal Bankruptcy Code, as now constituted or as hereafter amended, or any other Federal or State bankruptcy law or other similar law, or in case a receiver or trustee shall have been appointed for the property of the Company or such other obligor, or in the case of any other similar judicial proceedings relative to the Company or other obligor upon the Securities of any series, or to the creditors or property of the Company or such other obligor, the Trustee (irrespective of whether the principal of any Securities of any series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section 7.02) shall be entitled and empowered, by intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole amount of principal and premium, if any, and interest, if any, owing and unpaid in respect of the Securities of any series (in the case of Securities that are Original Issue Discount Securities, such principal amount as would be then due and payable upon declaration of acceleration in accordance with the terms of that series) and, in case of any judicial proceedings, to file such proofs of 46 38 claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and of the Holders allowed in such judicial proceedings relative to the Company or any other obligor on the Securities of any series, its or their creditors, or its or their property, and to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute the same after the deduction of its charges and expenses; and any receiver, assignee, liquidator, sequestrator or trustee in bankruptcy or reorganization is hereby authorized by each of the Holders to make such payments to the Trustee, and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for compensation and expenses, including counsel fees incurred by it up to the date of such distribution. Nothing herein contained shall be deemed to authorize the Trustee to approve, consent, 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. All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee with respect to the Securities of any series shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall be for the ratable benefit of the Holders of the Securities in respect of which such action is taken. SECTION 7.03. Application of Moneys Collected by Trustee. Any moneys collected by the Trustee with respect to any series of Securities under this Article Seven shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys on account of principal, premium, if any, or interest, if any, upon presentation of the several Securities of such series or the coupons appertaining thereto, as the case may be, and stamping thereon the payment, if only partially paid, and upon surrender thereof if fully paid: FIRST To the payment of all amounts due the Trustee under Section 8.06 hereof; 47 39 SECOND: In case the principal of the outstanding Securities of that series shall not have become due and be unpaid, to the payment of interest on the Securities of that series, in the order of the maturity of the installments of such interest with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the rate of interest (or yield to maturity in the case of Original Issue Discount Securities) borne by the Securities of that series, such payments to be made ratably to the Persons entitled thereto; THIRD: In case the principal of the outstanding Securities of a series in respect of which such moneys have been collected shall have become due and payable, by declaration or otherwise, to the payment of the whole amount then owing and unpaid upon the Securities of that series for principal and premium, if any, and interest, if any, with interest on the overdue principal and premium, if any, and (to the extent that such interest has been collected by the Trustee) upon any overdue installments of interest at the rate of interest (or yield to maturity in the case of Original Issue Discount Securities) borne by the Securities of that series, and in case such moneys shall be insufficient to pay in full the whole amounts so due and unpaid upon the Securities of that series, then to the payment of such principal and premium, if any, and interest, if any, without preference or priority of principal and premium, if any, over interest, or of interest over principal and premium, if any, or of any installment of interest over any other installment of interest, or of any Security of that series over any other Security of that series, ratably to the aggregate of such principal and premium, if any, and any accrued and unpaid interest. Any surplus then remaining shall be paid to the Company or to such other Person as shall be entitled to receive it. SECTION 7.04. Proceedings by Holders. No Holder of any Security of any series or of any coupon appertaining thereto shall have any right by virtue of or by availing of any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount at Stated Maturity of the Securities of that series (or, in case of an Event of Default described in clause (d), (e) or (f) of 48 40 Section 7.01, 25% in aggregate principal amount of all Securities then outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as the Trustee hereunder and shall have offered to the Trustee such reasonable indemnity as it may require against the costs, expenses and liabilities to be incurred therein or thereby, and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no direction inconsistent with such written request shall have been given to the Trustee during such 60 day period by the Holders of a majority in principal amount at Stated Maturity of the outstanding Securities of such series, it being understood and intended, and being expressly covenanted by the taker and Holder of every Security of that series with every other taker and Holder of every Security of that series or coupons appertaining thereto and the Trustee, that no one or more Holders of Securities of any series 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 Holder of Securities of that series or any other series or coupons appertaining thereto, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities. Notwithstanding any other provisions in this Indenture, however, the right of any Holder of any Security or coupon to receive payment of the principal of, and premium, if any, and interest, if any, on such Security, on or after the respective Stated Maturities expressed in such Security or, in the case of redemption or repayment on or after the redemption date or repayment date, as the case may be, and to institute suit for the enforcement of any such payment on or after such respective date shall not be impaired or affected without the consent of such Holder. SECTION 7.05. Proceedings by Trustee. In case of an Event of Default hereunder, the Trustee, in its discretion, may proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any of such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the specific enforcement 49 41 of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law. SECTION 7.06. Remedies Cumulative and Continuing. All powers and remedies given by this Article Seven to the Trustee or to the Holders of Securities or coupons shall, to the extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or such Holders, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder to exercise any right or power accruing upon any default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or an acquiescence therein; and, subject to the provisions of Section 7.04, every power and remedy given by this Article Seven or by law to the Trustee or to the Holders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders. SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority of Holders. The Holders of a majority in aggregate principal amount of the Securities of all series affected (voting as one class) (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities") at the time outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, provided, however, that (subject to the provisions of Section 8.01 ) the Trustee shall have the right to decline to follow any such direction if the Trustee, being advised by counsel, shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees or Responsible Officers shall determine that the action or proceedings so directed would involve the Trustee in personal liability. Prior to any declaration accelerating the maturity of the Securities of a particular series (or all of the Securities as the case may be), the Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of that series at the time outstanding may on behalf of the Holders of all the Securities of that series waive any past default or Event of Default described in clause 50 42 (a), (b), (c) or (g) of Section 7.01 (or, in the case of an event specified in clause (d), (e) or (f) of Section 7.01, the Holders of an aggregate principal amount of all the Securities then outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) may waive such default or Event of Default as its consequences except (1) a default in the payment of interest, if any, or premium, if any, on, or the principal of, any of the Securities or in the payment of any sinking fund installment or analogous obligation with respect to Securities or (2) in respect of a covenant or provision hereof which under Article Eleven cannot be modified or amended without the consent of the Holder of each Security outstanding of the series affected. Upon any such waiver the Company, the Trustee and the Holders of Securities of that series (or all of the Securities, as the case may be) shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon. Whenever any default or Event of Default hereunder shall have been waived as permitted by this Section 7.07, said default or Event of Default shall for all purposes of the Securities and this Indenture be deemed to have been cured and to be not continuing. SECTION 7.08. Notice of Defaults. The Trustee shall, within 90 days after the occurrence of any default hereunder with respect to Securities of any series, mail to all Holders of Securities of that series in the manner and to the extent provided in Section 6.04(c) notice of such default known to the Trustee, unless such default shall have been cured prior to the giving of such notice; and provided that, except in the case of default in the payment of the principal of or premium, if any, or interest, if any, on any of the Securities of that series or in the making of any sinking fund payment or analogous obligation with respect to Securities of that series, the Trustee shall be protected in withholding such notice if and so long as the board of directors or trustees, the executive committee, or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of Securities of such series; and provided, further, that in the case of any default of the character specified in Section 7.01(d) with respect to Securities of such series, no such notice to Holders of Securities of such series shall be given until at least 90 days after the occurrence thereof. For the purpose of this 51 43 Section, the term "default," with respect to Securities of any series, means any event which is, or after notice or lapse of time, or both, would become, an Event of Default with respect to Securities of such series. SECTION 7.09. Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security or coupon by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 7.09 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder or group of Holders, holding in the aggregate more than 10% in principal amount at Stated Maturity of the Securities outstanding of that series (or, in case of any suit relating to or arising under clause (d), (e) or (f) of Section 7.01, 10% in principal amount of all Securities outstanding (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities")) or to any suit instituted by any Holder for the enforcement of the payment of the principal of or premium, if any, or interest, if any, on any Security on or after the respective Stated Maturities expressed in such Securities (or in the case of redemption or repayment on or after the redemption date or repayment date). ARTICLE EIGHT. CONCERNING THE TRUSTEE. SECTION 8.0 1. Duties and Responsibilities of Trustee. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of that series and after the curing of a Events of Default which may have occurred with respect to the Securities of that series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations with respect to such series shall be read 52 44 into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of any series has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture with respect to that series and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs. Prior to the occurrence of an Event of Default with respect to the Securities of a series, and after the curing or waiving of all Events of Default with respect to that series which may have occurred and in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture. No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that (a) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts, and (b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders pursuant to Section 7.07 of any series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture. None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it has reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. 53 45 SECTION 8.02. Reliance on Documents, Opinions, etc. Except as otherwise provided in Section 8.01 (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a written statement signed in the name of the Company by the Chairman of the Board of Directors, the President, a Chief Operating Officer, one of its Vice Presidents or its Treasurer (unless other evidence in respect thereof is herein specifically prescribed); and any resolution of the Board of Directors shall be sufficiently evidenced to the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Company; (c) the Trustee may consult with counsel and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or Opinion of Counsel; (d) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction of any of the Holders, pursuant to the provisions of this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which may be incurred therein or thereby; (e) the Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (f) prior to the occurrence of an Event of Default hereunder and after the curing or waiving of all Events of Default, the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent order, approval, bond, debenture, coupon or other paper or document, unless requested in writing to do so by the Holders of not less than a majority in principal amount at Stated Maturity of the Securities then 54 46 outstanding of any series affected or of all the Securities, as the case may be; provided, however, that if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expense or liability as a condition to so proceeding; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys. SECTION 8.03. No Responsibility for Recitals, etc. The recitals contained herein and in the Securities (except in the Trustee's certificate of authentication) shall be taken as the statements of the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of any of the Securities or coupons; provided that the Trustee shall not be relieved of its duty to authenticate Securities as authorized by this Indenture. The Trustee shall not be accountable for the use or application by the Company of any Securities or the proceeds of any Securities authenticated and delivered by the Trustee in conformity with the provisions of this Indenture. SECTION 8.04. Trustee, Paying Agent or Registrar May Own Securities. The Trustee or any paying agent or Security registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities or the coupons appertaining thereto with the same rights it would have if it were not Trustee, paying agent or Security registrar. SECTION 8.05. Moneys to be Held in Trust. Subject to the provisions of Section 13.04, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law. The Trustee and any paying agent shall be under no liability for interest on any moneys received by it hereunder except such as it may agree with the Company to pay thereon. SECTION 8.06. Compensation and Expenses of Trustee. The Company covenants and agrees to pay to the Trustee from time to time, and the 55 47 Trustee shall be entitled to, reasonable compensation (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust), and the Company will pay or reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its negligence or bad faith. The Company also covenants to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on the part of the Trustee and arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of liability arising in connection with its duties under this Indenture. The obligations of the Company under this Section 8.06 to compensate the Trustee and to pay or reimburse the Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities. SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise provided in Section 8.01, whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers' Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken or omitted by it under the provisions of this Indenture upon the faith thereof. SECTION 8.08. Conflicting Interest of Trustee. (a) If the Trustee has or shall acquire any conflicting interest, as defined in this Section 8.08, it shall, within 90 days after ascertaining that it has such conflicting interest, either eliminate such conflicting interest or resign in the manner and with the effect specified in Section 8.10. 56 48 (b) In the event that the Trustee shall fail to comply with the provisions of subsection (a) of this Section 8.08, the Trustee shall, within 10 days after the expiration of such 90 day period, transmit notice of such failure to all Holders of Securities, to the extent provided in Section 6.04(c). (c) For the purposes of this Section 8.08, the Trustee shall be deemed to have a conflicting interest with respect to Securities of any series if: (1) the Trustee is trustee under this Indenture with respect to the outstanding securities of any series other than that series or is trustee under another indenture under which any other securities, or certificates of interest or participation in any other securities, of the Company are outstanding unless such other indenture is a collateral trust indenture under which the only collateral consists of Securities issued under this Indenture; provided that there shall be excluded from the operation of this paragraph (A) the Indenture dated April 1, 1970 by and between the Company and the Trustee, as successor Trustee, pursuant to which the Company's 8-5/8% Debentures due April 1, 2000 are outstanding; and (B) this Indenture with respect to the Securities of any series other than that series or any indenture or indentures under which other securities, or certificates of interest or participation in other securities, of the Company are outstanding if (i) this Indenture and such other indenture or indentures are wholly unsecured and such other indenture or indentures are hereafter qualified under the Trust Indenture Act of 1939, unless the Securities and Exchange Commission shall have found and declared by order pursuant to subsection (b) of section 305 or subsection (c) of section 307 of the Trust Indenture Act of 1939 that differences exist between the provisions of this 57 49 Indenture and the provisions of such other indenture or indentures which are so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of that series and any such other series and such other indentures, or (ii) the Company shall have sustained the burden of proving, on application to the Securities and Exchange Commission and after opportunity for hearing thereon, that the trusteeship under this Indenture with respect to Securities of that series and such other series and such other indenture is not so likely to involve a material conflict of interest as to make it necessary in the public interest or for the protection of investors to disqualify the Trustee from acting as such under this Indenture with respect to Securities of that series or such other series or such indenture or indentures; (2) the Trustee or any of its directors or executive officers is an obligor upon the Securities of any series issued under this Indenture or an underwriter for the Company; (3) the Trustee directly or indirectly controls or is directly or indirectly controlled by or is under direct or indirect common control with the Company or an underwriter for the Company; (4) the Trustee or any of its directors or executive officers is a director, officer, partner, employee, appointee, or representative of the Company, or of an underwriter (other than the Trustee itself) for the Company who is currently engaged in the business of underwriting, except that (A) one individual may be a director or an executive officer of the Trustee and a director or an executive officer of the Company, but may not be at the same time an executive officer of both the Trustee and the Company; (B) if and so long as the number of directors of the Trustee in office is more than nine, one additional individual may be a director or an executive officer of the Trustee and a director of the Company; and (C) the Trustee may be designated by the Company or by an underwriter for the Company to act in the capacity of transfer agent, registrar, custodian, paying agent, fiscal agent, escrow agent, or depositary, or in any other similar capacity, or, subject to the provisions of paragraph (1) of this subsection (c), to act as trustee whether under an indenture or otherwise; (5) 10% or more of the voting securities of the Trustee is beneficially owned either by the Company or by any director, partner, or executive 58 50 officer thereof, or 20% or more of such voting securities is beneficially owned, collectively, by any two or more of such persons; or 10% or more of the voting securities of the Trustee is beneficially owned either by an underwriter for the Company or by any director, partner, or executive officer thereof, or is beneficially owned, collectively, by any two or more such persons; (6) the Trustee is the beneficial owner of or holds as collateral security for an obligation which is in default, (A) 5% or more of the voting securities, or 10% or more of any other class of security, of the Company, not including the Securities issued under this Indenture and securities issued under any other indenture under which the Trustee is also trustee, or (B) 10% or more of any class of security of an underwriter for the Company; (7) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, 5% or more of the voting securities of any person who, to the knowledge of the Trustee, owns 10% or more of the voting securities of, or controls directly or indirectly or is under direct or indirect common control with, the Company; (8) the Trustee is the beneficial owner of, or holds as collateral security for an obligation which is in default, 10% or more of any class of security of any person who, to the knowledge of the Trustee, owns 50% or more of the voting securities of the Company; or (9) the Trustee owns on May 15 in any calendar year, in the capacity of executor, administrator, testamentary or inter vivos trustee, guardian, committee or conservator, or in any other similar capacity, an aggregate of 25% or more of the voting securities, or of any class of security, of any person, the beneficial ownership of a specified percentage of which would have constituted a conflicting interest under paragraph (6), (7) or (8) of this subsection (c). As to any such securities of which the Trustee acquired ownership through becoming executor, administrator or testamentary trustee of an estate which included them, the provisions of the preceding sentence shall not apply, for a period of two years from the date of such acquisition to the extent that such securities included in such estate do not exceed 25% of such voting securities or 25% of any such class of security. Promptly after May 15, in each calendar year, the Trustee shall make a check of its holdings of such securities in any of the above-mentioned capacities as of such May 15. If the Company fails to make payment in full of principal of or interest 59 51 on any of the Securities when and as the same becomes due and payable, and such failure continues for 30 days thereafter, the Trustee shall make a prompt check of its holdings of such securities in any of the above mentioned capacities as of the date of the expiration of such 30-day period and, after such date, notwithstanding the foregoing provisions of this paragraph (9), all such securities so held by the Trustee, with sole or joint control over such securities vested in it, shall, but only so long as such failure shall continue, be considered as though beneficially owned by the Trustee for the purposes of paragraphs (6), (7) and (8) of this subsection (c). The specifications of percentages in paragraphs (5) to (9), inclusive, of this subsection (c) shall not be construed as indicating that the ownership of such percentages of the securities of a person is or is not necessary or sufficient to constitute direct or indirect control for the purposes of paragraph (3) or (7) of this subsection (c). For the purposes of paragraphs (6), (7), (8) and (9) of this subsection (c) only, (A) the terms "security" and "securities" shall include only such securities as are generally known as corporate securities, but shall not include any note or other evidence of indebtedness issued to evidence an obligation to repay moneys lent to a person by one or more banks, trust companies or banking firms, or any certificate of interest or participation in any such note or evidence of indebtedness; (B) an obligation shall be deemed to be in default when a default in payment of principal shall have continued for 30 days or more and shall not have been cured; and (C) the Trustee shall not be deemed to be the owner or holder of (i) any security which it holds as collateral security (as trustee or otherwise) for an obligation which is not in default as defined in clause (B) above, or (ii) any security which it holds as collateral security under this Indenture, irrespective of any default hereunder, or (iii) any security which it holds as agent for collection, or as custodian, escrow agent or depositary, or in any similar representative capacity. Except as provided in the next preceding paragraph hereof, the words "security" or "securities" as used in this Indenture shall mean any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, pre-organization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a 60 52 security, fractional undivided interest in oil, gas or other mineral rights, or, in general, any interest or instrument commonly known as a "security" or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing. (d) For the purposes of this Section 8.08. (1) The term "underwriter" when used with reference to the Company shall mean every person who, within three years prior to the time as of which the determination is made, has purchased from the Company with a view to, or has offered or sold for the Company in connection with, the distribution of any security of the Company outstanding at such time, or has participated or has had a direct or indirect participation in any such undertaking, or has participated or has had a participation in the direct or indirect underwriting of any such undertaking, but such term shall not include a person whose interest was limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors' or sellers' commission. (2) The term "director" shall mean any director of a corporation or any individual performing similar functions with respect to any organization whether incorporated or unincorporated. (3) The term "person" shall mean an individual, a corporation, a partnership, an association, a joint-stock company, a trust, an unincorporated organization, or a government or political subdivision thereof. As used in this paragraph, the term "trust" shall include only a trust where the interest or interests of the beneficiary or beneficiaries are evidenced by a security. (4) The term "voting security" shall mean any security presently entitling the owner or holder thereof to vote in the direction or management of the affairs of a person, or any security issued under or pursuant to any trust, agreement or arrangement whereby a trustee or trustees or agent or agents for the owner or holder of such security are presently entitled to vote in the direction or management of the affairs of a person. (5) The term "Company" shall mean any obligor upon the Securities. (6) The term "executive officer" shall mean the president, every vice president, every trust officer, the cashier, the secretary, and the treasurer of a 61 53 corporation, and any individual customarily performing similar functions with respect to any organization whether incorporated or unincorporated, but shall not include the chairman of the board of directors. The percentages of voting securities and other securities specified in this Section 8.08 shall be calculated in accordance with the following provisions: (A) A specified percentage of the voting securities of the Trustee, the Company or any other person referred to in this Section 8.08 (each of whom is referred to as a "person" in this paragraph) means such amount of the outstanding voting securities of such person as entitles the holder or holders thereof to cast such specified percentage of the aggregate votes which the holders of all the outstanding voting securities of such person are entitled to cast in the direction or management of the affairs of such person. (B) A specified percentage of a class of securities of a person means such percentage of the aggregate amount of securities of the class outstanding. (C) The term "amount," when used in regard to securities, means the principal amount if relating to evidences of indebtedness, the number of shares if relating to capital shares, and the number of units if relating to any other kind of security. (D) The term "outstanding" means issued and not held by or for the account of the issuer. The following securities shall not be deemed outstanding within the meaning of this definition: (i) securities of an issuer held in a sinking fund relating to securities of the issuer of the same class; (ii) securities of an issuer held in a sinking fund relating to another class of securities of the issuer, if the obligation evidenced by such other class of securities is not in default as to principal or interest or otherwise; (iii) securities pledged by the issuer thereof as security for an obligation of the issuer not in default as to principal or interest or otherwise; (iv) securities held in escrow if placed in escrow by the issuer thereof; provided, however, that any voting securities of an issuer shall be deemed outstanding if any person other than the issuer is entitled to exercise the voting rights thereof. (E) A security shall be deemed to be of the same class as another security if both securities confer upon the holder or holders thereof 62 54 substantially the same rights and privileges; provided, however, that in the case of secured evidences of indebtedness, all of which are issued under a single indenture, differences in the interest rates or maturity dates of various series thereof shall not be deemed sufficient to constitute such series different classes, and provided, further, that, in the case of unsecured evidences of indebtedness, differences in the interest rates or maturity dates thereof shall not be deemed sufficient to constitute them securities of different classes, whether or not they are issued under a single indenture. SECTION 8.09. Eligibility of Trustee. The Trustee with respect to each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States or any State or Territory thereof or of the District of Columbia authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000, subject to supervision or examination by Federal, State, Territorial, or District of Columbia authority and having its principal office and place of business in The City of New York, if there be such a corporation having its principal office and place of business in said City. If such corporation publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time the Trustee with respect to each series of Securities shall cease to be eligible in accordance with the provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the effect specified in Section 8.10. SECTION 8.10. Resignation or Removal of Trustee. (a) The Trustee may resign with respect to any series of Securities at any time by giving written notice of such resignation to the Company and by giving notice thereof to the Holders of the applicable series of Securities in manner and to the extent provided in Section 6.04(c). Upon receiving such notice of resignation with respect to the applicable series of Securities, the Company shall promptly appoint a successor trustee with respect to that series by written instrument, in duplicate, executed by or pursuant to order of the Board of Directors, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If a successor trustee shall not have been so appointed with respect to any series of 63 55 Securities, and shall have accepted appointment within 30 days after the giving of such notice of resignation to the Holders of such series, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Holder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 7.09, on behalf of such Holder and all others similarly situated, petition any such court for the appointment of a successor trustee with respect to that series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. (b) In case at any time any of the following shall occur -- (1) the Trustee shall fail to comply with the provisions of subsection (a) of Section 8.08 after written request therefor by the Company or by any Holder who has been a bona fide holder of a Security or Securities of the applicable series for at least six months, or (2) the Trustee shall cease to be eligible in accordance with the provisions of Section 8.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting, with respect to any series of Securities 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, the Company may remove the Trustee with respect to any one or more of such series of Securities and appoint a successor trustee of that series by written instrument, in duplicate, executed by or pursuant to order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or subject to the provisions of Section 7.09, any Holder has been a bona fide Holder of a Security or Securities of that series for at least six months may, on behalf of such Holder and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to that series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee with respect to that series. 64 56 (c) The Holders of a majority in aggregate principal amount at Stated Maturity of the Securities of any series at the time outstanding may at any time remove the Trustee with respect to such series and nominate with respect to such series a successor trustee which shall be deemed appointed as successor trustee with respect to such series unless within 10 days after such nomination the Company objects thereto, in which case the Trustee so removed or any Holder of Securities of the series may petition any court of competent jurisdiction for appointment of a successor trustee with respect to such series upon the terms and conditions and otherwise as provided in subsection (a) of this Section 8.10. (d) Any resignation or removal of the Trustee and any appointment of a successor trustee with respect to an applicable series of Securities pursuant to any of the provisions of this Section 8.10 shall become effective upon acceptance of appointment by the successor trustee for that series as provided in Section 8.11. (e) The Company shall give notice as provided in Section 15.05 of each resignation or removal of the Trustee with respect to any series of Securities. Each notice shall include the name of such successor trustee and the address of its Principal Office and shall be given within 60 days of such event. SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee appointed as provided in Section 8.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such appointment hereunder. and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the trustee ceasing to act shall, upon payment of any amounts then due it pursuant to the provisions of Section 8.06, execute and deliver an instrument transferring to such successor trustee all the rights and powers and trusts with respect to any series of Securities of the trustee so ceasing to act. Upon request of any successor trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and 65 57 confirm to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 8.06. In case of the appointment hereunder of a successor trustee with respect to the Securities of any one or more (but not all) series, the Company, the predecessor trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto wherein each successor trustee shall accept such appointment and which shall contain (1) such provisions as shall be necessary or desirable to transfer and confirm to, and vest in each successor trustee all of the rights, powers and duties of the predecessor trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (2) if the retiring trustee is not retiring with respect to all Securities, it shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of any series as to which the predecessor trustee is not retiring shall continue to be vested in the predecessor trustee and (3) 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. No successor trustee shall accept appointment as provided in this Section 8.11 unless at the time of such acceptance such successor trustee shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09. Upon acceptance of appointment by a successor trustee as provided in this Section 8.11, the Company shall mail notice of the succession of such trustee hereunder to all the Registered Holders of such series as the names and addresses of such Holders shall appear on the registry books of the Company and shall publish notice of such event once in an Authorized Newspaper in the Place of Payment. If the Company fails to mail such notice in the prescribed manner within 10 days after the acceptance of 66 58 appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Company. SECTION 8.12. Succession by Merger, etc. 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 the business of the Trustee, shall be the successor of the Trustee hereunder provided such corporation shall be qualified under the provisions of Section 8.08 and eligible under the provisions of Section 8.09 without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Securities of any series so authenticated; and in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities of any series either in the name of any predecessor hereunder or in the name of the successor trustee; and in all such cases such certificates shall have the full force which it is anywhere in the Securities of any series or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt the certificate of authentication of any predecessor trustee or authenticate Securities of any series in the name of any predecessor trustee shall apply only to its successor or successors by merger, conversion or consolidation. SECTION 8.13. Limitation on Rights of Trustee as a Creditor. (a) Subject to the provision of subsection (b) of this Section 8.13, if the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company or of any other obligor on the Securities of any series within four months prior to a default, as defined in subsection (c) of this Section 8.13, or subsequent to such a default, then, unless and until such default shall be cured, the Trustee shall set apart and hold in special account for the benefit of the Trustee individually, the Holders of the Securities of any series, and the holders of other indenture securities (as defined in paragraph (2) of subsection (c) of this Section 8.13): 67 59 (1) an amount equal to any and all reductions in the amount due and owing upon any claim as such creditor in respect of principal or interest, effected after the beginning of such four-month period and valid as against the Company and its other creditors, except any such reduction resulting from the receipt or disposition of any property described in paragraph (2) of this subsection, or from the exercise of any right of set-off which the Trustee could have exercised if a petition in bankruptcy had been filed by or against the Company upon the date of such default; and (2) all property received by the Trustee in respect of any claim as such creditor, either as security therefor, or in satisfaction or composition thereof, or otherwise, after the beginning of such four-month period, or an amount equal to the proceeds of any such property, if disposed of, subject however, to the rights, if any, of the Company and its other creditors in such property or such proceeds. Nothing herein contained, however, shall affect the right of the Trustee: (A) to retain for its own account (i) payments made on account of any such claim by any person (other than the Company) who is liable thereon, and (ii) the proceeds of the bona fide sale of any such claim by the Trustee to a third person, and (iii) distributions made in cash, securities, or other property in respect of claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to Federal or State bankruptcy laws or other similar laws; (B) to realize, for its own account, upon any property held by it as security for any such claim, if such property was so held prior to the beginning of such four-month period; (C) to realize, for its own account, but only to the extent of the claim hereinafter mentioned, upon any property held by it as security for any such claim, if such claim was created after the beginning of such four-month period and such property was received as security therefor simultaneously with the creation thereof, and if the Trustee shall sustain the burden of proving that at the time such property was so received the Trustee had no reasonable cause to believe that a default, as defined in subsection (c) of this Section 8.13, would occur within four months; or (D) to receive payment on any claim referred to in paragraph (B) or (C), against the release of any property held as security for such claim as 68 60 provided in such paragraph (B) or (C), as the case may be, to the extent of the fair value of such property. For the purposes of paragraphs (B), (C) and (D), property substituted after the beginning of such four-month period for property held as security at the time of such substitution shall, to the extent of the fair value of the property released, have the same status as the property released, and, to the extent that any claim referred to in any of such paragraphs is created in renewal of or in substitution for or for the purpose of repaying or refunding any pre-existing claim of the Trustee as such creditor, such claim shall have the same status as such pre-existing claim. If the Trustee shall be required to account, the funds and property held in such special account and the proceeds thereof shall be apportioned between the Trustee, the Holders of Securities of a series as to which such Trustee is acting as Trustee hereunder and the holders of other indenture securities in such manner that the Trustee, the Holders and the holders of other indenture securities realize, as a result of payments from such special account and payments of dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, the same percentage of their respective claims, figured before crediting to the claim of the Trustee anything on account of the receipt by it from the Company of the funds and property in such special account and before crediting to the respective claims of the Trustee, the Holders and the holders of other indenture securities dividends on claims filed against the Company in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, but after crediting thereon receipts on account of the indebtedness represented by their respective claims from all sources other than from such dividends and from the funds and property so held in such special account. As used in this paragraph, with respect to any claim, the term "dividends" shall include any distribution with respect to such claim, in bankruptcy or receivership or in proceedings for reorganization pursuant to the Federal or State bankruptcy laws or other similar laws, whether such distribution is made in cash, securities or other property, but shall not include any such distribution with respect to the secured portion, if any, of such claim. The court in which such bankruptcy, receivership or proceeding for reorganization is pending shall have jurisdiction (i) to apportion between the Trustee, the Holders and the 69 61 holders of other indenture securities, in accordance with the provisions of this paragraph, the funds and property held in such special account and the proceeds thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to the provisions of this paragraph due consideration in determining the fairness of the distributions to be made to the Trustee, the Holders and the holders of other indenture securities with respect to their respective claims, in which event it shall not be necessary to liquidate or to appraise the value of any securities or other property held in such special account or as security for any such claim, or to make a specific allocation of such distributions as between the secured and unsecured portions of such claims, or otherwise to apply the provisions of this paragraph as a mathematical formula. Any Trustee who has resigned or been removed after the beginning of such four-month period shall be subject to the provisions of this subsection (a) as though such resignation or removal had not occurred. If any Trustee has resigned or been removed prior to the beginning of such four-month period, it shall be subject to the provisions of this subsection (a) if and only if the following conditions exist: (i) the receipt of property or reduction of claim which would have given rise to the obligation to account, if such Trustee had continued as trustee, occurred after the beginning of such four-month period; and (ii) such receipt of property or reduction of claim occurred within four months after such resignation or removal. (b) There shall be excluded from the operation of subsection (a) of this Section 8.13 a creditor relationship arising from: (1) the ownership or acquisition of securities issued under any indenture, or any security or securities having a maturity of one year or more at the time of acquisition by the Trustee; (2) advances authorized by a receivership or bankruptcy court of competent jurisdiction, or by this Indenture, for the purpose of preserving any property which shall at any time be subject to the lien of this Indenture or of discharging tax liens or other prior liens or encumbrances thereon, if notice of such advance and of the circumstances surrounding the making thereof is given to the Holders at the time and in the manner provided in Section 6.04 with respect to reports pursuant to subsections (a) and (b) thereof, respectively; 70 62 (3) disbursements made in the ordinary course of business in the capacity of trustee under an indenture, transfer agent, registrar, custodian, paying agent, fiscal agent or depositary, or other similar capacity; (4) an indebtedness created as a result of services rendered or premises rented; or an indebtedness created as a result of goods or securities sold in a cash transaction as defined in subsection (c) of this Section 8.13; (5) the ownership of stock or of other securities of a corporation organized under the provisions of section 25(a) of the Federal Reserve Act, as amended, which is directly or indirectly a creditor of the Company; or (6) the acquisition, ownership, acceptance or negotiation of any drafts, bills of exchange, acceptances or obligations which fall within the classification of self-liquidating paper as defined in subsection (c) of this Section 8.13. (c) For the purposes of this Section 8.13: (1) The term "default" shall mean any failure to make payment in full of the principal of or interest upon one of the Securities of any series or upon the other indenture securities when and as such principal or interest becomes due and payable. (2) The term "other indenture securities" shall mean securities upon which the Company is an obligor (as defined in the Trust Indenture Act of 1939) outstanding under any other indenture (A) under which the Trustee is also trustee, (B) which contains provisions substantially similar to the provisions of subsection (a) of this Section 8.13, and (C) under which a default exists at the time of the apportionment of the funds and property held in said special account. (3) The term "cash transaction" shall mean any transaction in which full payment for goods or securities sold is made within seven days after delivery of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand. (4) The term "self-liquidating paper" shall mean any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company for the purpose of financing the purchase, processing, manufacture, shipment, storage or sale of goods, wares or merchandise and which is secured by documents evidencing title to, 71 63 possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds arising from the sale of the goods, wares or merchandise previously constituting the security; provided that the security is received by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating or incurring of the draft, bill of exchange, acceptance or obligation. (5) The term "Company" shall mean any obligor upon the Securities. ARTICLE NINE. CONCERNING THE HOLDERS. SECTION 9.01. Action by Holders. (a) Whenever in this Indenture it is provided that the Holders of a specified percentage in aggregate principal amount at Stated Maturity of the Securities of any or all series may take any action (including the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action) the fact that at the time of taking any such action the Holders of such specified percentage have joined therein may be evidenced (A) by any instrument or any number of instruments of similar tenor executed by Holders in person or by agent or proxy appointed in writing, or (B) by the record of the Holders of Securities voting in favor thereof at any meeting of Holders duly called and held in accordance with the provisions of Article Ten, or (C) by a combination of such instrument or instruments and any such record of such a meeting of such Holders. (b) If the Company shall solicit from the Holders of any or all series any request, demand, authorization, direction, notice, consent, waiver or other act, the Company may, at its option, by or pursuant to resolution of the Board of Directors fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other act, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other act may be given before or after the record date, but only the Holders of record at the close of business on the record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Securities 72 64 have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other act, and for that purpose the Securities deemed to be outstanding shall be computed as of the record date; provided that no such authorization, agreement or consent by the Holders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date. SECTION 9.02. Proof of Execution by Holders. Subject to the provisions of Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a Holder, his agent or proxy shall be sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The ownership of Securities of any series shall be proved by the registry books of the Company or by a certificate of the registrar of the Securities of any series. The record of any meeting of Holders of Securities may be proved in the manner provided in Section 10.06. SECTION 9.03. Who Deemed Absolute Owners. The Company, the Trustee, any paying agent, any transfer agent and any Security registrar may treat the Holder of any Unregistered Security and the Holder of any coupon, except with respect to a Fully Registered Security, whether or not the Security to which it appertained be registered, as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account thereof and for all other purposes (whether or not such Security or coupon shall be overdue) and neither the Company, the Trustee, any paying agent, any transfer agent nor any Security registrar shall be affected by any notice to the contrary. The Company, the Trustee, any paying agent, any transfer agent and any Security registrar may treat the person in whose name a Registered Security shall be registered upon the registry books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue) for the purpose of receiving payment of principal of, premium, if any, on and, if such Registered Security is a Fully Registered Security, interest if any, on, such Registered Security and for all other purposes; and neither the Company nor the Trustee nor any paying agent nor any transfer agent nor any Security registrar shall be affected by any notice to the contrary. All such payments so made to any Holder for the time being or upon his order shall be valid, and, to the extent of the sum or sums so paid, effectual, to satisfy and discharge the liability for moneys payable upon such Security. 73 65 The amount of Unregistered Securities held by any Person executing any instrument or writing as a Holder, and the numbers of such Unregistered Securities, and the date of his holding the same, may be proved by the production of such Securities or by a certificate executed by any trust company, bank, banker or member of a national securities exchange (wherever situated), as depositary, if such certificate is in form satisfactory to the Trustee, showing that at the date therein mentioned such Person had on deposit with such depositary, or exhibited to it, the Unregistered Securities therein described; or such facts may be proved by the certificate or affidavit of the Person executing such instrument or writing as a Holder, if such certificate or affidavit is in form satisfactory to the Trustee. The Trustee and the Company may assume that such ownership of any Unregistered Security continues until (i) another certificate bearing a later date issued in respect of the same Unregistered Security is produced, or (ii) such Unregistered Security is produced by some other Person, or (iii) such Unregistered Security is registered as to principal or is surrendered in exchange for a Fully Registered Security, or (iv) such Unregistered Security has been cancelled in accordance with Section 2.08. SECTION 9.04. Company-Owned Securities Disregarded. In determining whether the Holders of the requisite aggregate principal amount at Stated Maturity of Securities have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Company or any other obligor on such Securities or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor on the Securities shall be disregarded and deemed not to be outstanding for the purpose of any such determination; provided that for the purposes of determining whether the Trustee shall be protected in relying on any such direction or consent only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as outstanding for the purposes of this Section 9.04 if the pledgee shall establish to the satisfaction of the Trustee the pledgee's right to vote such Securities and that the pledgee is not a person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor. In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the Trustee. 74 66 SECTION 9.05. Revocation of Consents; Future Holders Bound. (a) At any time prior to but not after, the evidencing to the Trustee, as provided in Section 9.01, of the taking of any action by the Holders of the percentage in aggregate principal amount at Stated Maturity of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the number, letter or other distinguishing symbol of which is shown by the evidence to be included in the Securities the Holders of which have consented to such action may, by filing written notice with the Trustee at the Principal Office of the Trustee and upon proof of holding as provided in Section 9.02, revoke such action so far as concerns such Holder and all future Holders and owners of such Security and any Securities which may be issued in exchange or substitution therefor, irrespective of whether or not any notation in regard thereto is made upon such Security or such other Security issued in exchange or substitution therefor. (b) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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 any action taken, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Security. ARTICLE TEN. HOLDERS' MEETINGS. SECTION 10.01. Purposes of Meetings. A meeting of the Holders of Securities of any or all series may be called at any time and from time to time pursuant to the provisions of this Article Ten for any of the following purposes: (1) to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any default hereunder and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article Seven; (2) to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article Eight; 75 67 (3) to consent to the execution of an indenture or supplemental hereto pursuant to the provisions of Section 11.02; or (4) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount at Stated Maturity of the Securities of any or all series, as the case may be, under any other provisions of this Indenture or under applicable law. SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time call a meeting of Holders of Securities of any or all series to take any action specified in Section 10.01, to be held at such time and at such place in the Borough of Manhattan, The City of New York, as the Trustee shall determine. Notice of every meeting of the Holders of Securities of any or all series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed to Holders of Registered Securities of each series affected, at their addresses as they appear on the registry books of the Company, and notice to Holders of Unregistered Securities of each series affected shall be published in an Authorized Newspaper in the Place of Payment. Such notice shall be mailed or published, as the case may be, not less than 20 nor more than 90 days prior to the date fixed for the meeting. However, if all Securities of any series with respect to which the meeting is to be held are Registered Securities no notice need be given except notice by mail as hereinabove provided. Failure to receive such notice or any defect therein shall in no case affect the validity of any action taken at such meeting. Any meeting of Holders of Securities of any or all series, as the case may be, shall be valid without notice if the Holders of all such Securities outstanding, the Company and the Trustee are present in person or by proxy or shall have waived notice thereof before or after the meeting. SECTION 10.03. Call of Meetings by Company or Holders. In case at any time the Company, pursuant to a resolution of its Board of Directors, or the Holders of at least 10% in aggregate principal amount at Stated Maturity of the Securities then outstanding of any or all series, as the case may be, that may be affected by the action proposed to be taken at the meeting, shall have requested the Trustee to call a meeting of Holders of Securities of any or all series, as the case may be, that may be so affected by written request setting forth in a reasonable detail the action proposed to be taken at the 76 68 meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of such request, then the Company or such Holders, in the amount specified, may determine the time and the place in said Borough of Manhattan for such meeting and may call such meeting to take any action authorized in Section 10.01, by mailing notice thereof as provided in Section 10.02. SECTION 10.04. Qualification for Voting. To be entitled to vote at any meeting of Holders of Securities, a Person shall (a) be a Holder of one or more Securities with respect to which such meeting is being held or (b) be a Person appointed by an instrument in writing as proxy by such a Holder. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any or all series, as the case may be, shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. SECTION 10.05. Regulations. Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem fit. The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 10.03, in which case the Company or the Holders calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Holders of a majority in principal amount at Stated Maturity of the Securities represented at the meeting. Subject to the provisions of Section 9.04, at any meeting each Holder of Securities with respect to which such meeting is being held, or proxy therefor, shall be entitled to one vote for each $1,000 principal amount (in the case of Original Issue Discount Securities, such principal amount to be determined as provided in the definition of "Securities") of such Securities 77 69 held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any such Security challenged as not outstanding and ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have no right to vote other than as a Holder of Securities or proxy therefor. At any meeting of Holders of Securities, the presence of Persons holding or representing the Securities with respect to which such meeting is being held in such aggregate principal amount sufficient to take action on the business for the transaction of which such meeting was called shall constitute a quorum, but, if less than a quorum is present, the Persons holding or representing a majority in such aggregate principal amount of such Securities represented at the meeting may adjourn such meeting with the same effect, for all intents and purposes, as though a quorum had been present. Any meeting of Holders of Securities with respect to which such meeting is being held duly called pursuant to the provisions of Section 10.02 or 10.03 may be adjourned from time to time by vote of the Holders of a majority in such aggregate principal amount of the Securities represented at the meeting and entitled to vote, and the meeting may be held as so adjourned without further notice. SECTION 10.06. Voting. The vote upon any resolution submitted to any meeting of Holders of Securities with respect to which such meeting is being held shall be by written ballots on which shall be inscribed the signatures of the Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 10.02. The record shall show the serial numbers of the Securities voting in favor of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by 78 70 the Trustee. Any record so signed and verified shall be conclusive evidence of the matters therein stated. SECTION 10.07. No Delay of Rights by Meeting. Nothing in this Article Ten contained shall be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders of Securities or any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Holders of Securities under any of the provisions of this Indenture or of the Securities. ARTICLE ELEVEN. SUPPLEMENTAL INDENTURES. SECTION 11.01. Supplemental Indentures without Consent of Holders. Without the consent of any Holders of any series of Securities, the Company, when authorized by or pursuant to a resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or more of the following purposes: (a) to evidence the succession of another corporation to the Company, or successive successions, and the assumption by the successor corporation, pursuant to Article Twelve hereof, of the covenants, agreements and obligations of the Company herein and in the Securities contained; (b) to add to the covenants of the Company such further covenants, restrictions or conditions for the protection of the Holders of any series of Securities as the Board of Directors and the Trustee shall consider to be for the protection of the Holders of such Securities, and to make the occurrence, or the occurrence and continuance, of a default in any of such additional covenants, restrictions or conditions a default or an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth, provided, however, that in respect of any such additional covenant, restriction or condition such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default 79 71 or may limit the remedies available to the Trustee upon such default and shall not adversely affect the interests of the Holders of Securities of any series; (c) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the Securities of any series, any property or assets which the Company may desire or may be required to convey, transfer, assign, mortgage or pledge in accordance with the provisions of Section 5.03 or Section 12.02; (d) to establish the form or terms of Securities of any series as permitted by Section 2.01; (e) to cure any ambiguity, to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture which shall not be inconsistent with the provisions of this Indenture; provided however, such action shall not adversely affect the interests of the Holders of Securities of any series; or (f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 8.11; or (g) to provide for the documentation necessary for the issuance of Securities outside the United States of America. The Trustee is hereby authorized to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Any supplemental indenture authorized by the provisions of this Section 11.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the provisions of Section 11.02. 80 72 SECTION 11.02. Supplemental Indentures with Consent of Holders of a Series. With the consent (evidenced as provided in Section 9.01) of the Holders of not less than 50% in aggregate principal amount at Stated Maturity of the Securities at the time outstanding of each series affected by such supplemental indenture or indentures, the Company, when authorized by or pursuant to a resolution of the Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series under this Indenture; provided, however, that no such supplemental indenture shall without the consent of the Holder of each outstanding Security affected thereby (i) extend the fixed maturity of any Security, or reduce the rate of interest or extend the time of payment of interest, if any, thereon or reduce the principal thereof or the time during which premium is payable on or make the principal thereof or any premium or any interest thereon payable in any coin or currency other than that provided in such Securities, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 7.01 or the amount thereof provable in bankruptcy pursuant to Section 7.02 without the consent of the Holder of each Security so affected, or (ii) reduce the percentage in principal amount at Stated Maturity of the outstanding Securities, 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 hereof or of certain defaults hereunder and their consequences provided for in this Indenture. 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. Upon the request of the Company, accompanied by a copy of a resolution of the Board of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of such 81 73 series as aforesaid, the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee's own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture. It shall not be necessary for the consent of the Holders under this Section 11.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof. SECTION 11.03. Compliance with Trust Indenture Act; Effect of Supplemental Indentures. Any supplemental indenture executed pursuant to the provisions of this Article Eleven shall comply with the Trust Indenture Act of 1939, as then in effect. Upon the execution of any supplemental indenture pursuant to the provisions of this Article Eleven, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Company and the Holders of the series of Securities affected shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes. SECTION 11.04. Notation on Securities. Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article Eleven may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may be prepared and executed by the Company, authenticated by the Trustee and delivered in exchange for the Securities of such series then outstanding. SECTION 11.05. Evidence of Compliance of Supplemental Indenture to be Furnished Trustee. The Trustee, subject to the provisions of Sections 8.01 and 8.02, shall be entitled to receive and shall be fully protected in relying upon, an Officers' Certificate and an Opinion of Counsel as conclusive 82 74 evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article Eleven. ARTICLE TWELVE. CONSOLIDATION, MERGER AND SALE. SECTION 12.01. Company May Consolidate, etc., on Certain Terms. Subject to the provisions of Section 12.02, nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other corporation or corporations (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any sale or conveyance of all or substantially all the property of the Company, to any other corporation (whether or not affiliated with the Company) authorized to acquire and operate the same; provided, however, and the Company hereby covenants and agrees, that upon any such consolidation, merger, sale or conveyance, other than a consolidation or merger in which the Company is the continuing corporation, the due and punctual payment of the principal of and premium, if any, and interest, if any, on all of the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture and in such series to be performed by the Company, shall be expressly assumed, by supplemental indenture satisfactory in form to the Trustee, executed and delivered to the Trustee by the corporation (if other than the Company) formed by such consolidation, or into which the Company shall have been merged, or by the corporation which shall have acquired such property. SECTION 12.02. Securities to be Secured in Certain Events. If, upon any consolidation or merger of the Company with or into any other corporation, or upon any sale or conveyance of all or substantially all the property of the Company to any other corporation, any of the property of the Company or of any Restricted Subsidiary would thereupon become subject to any mortgage, lien or pledge, the Company, prior to or simultaneously with such consolidation, merger, sale or conveyance, will secure the Securities of each series outstanding hereunder, equally and ratably with any other obligations of the Company or any Restricted Subsidiary then entitled thereto, by a 83 75 direct lien on all such property prior to all liens other than any theretofore existing thereon. SECTION 12.03. Successor Corporation to be Substituted, In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor corporation, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the due and punctual payment of the principal of and premium, if any, and interest, if any, on all of the Securities of each series and the due and punctual performance of all of the covenants and conditions of this Indenture and in such series to be performed by the Company, such successor corporation shall succeed to and be substituted for the Company, with the same effect as if it had been named herein and, if the Company is to be voluntarily dissolved, the Company shall thereupon be released from all obligations hereunder and under the Securities of each series. Such successor corporation thereupon may cause to be signed, and may issue either in its own name or in the name of Atlantic Richfield Company any or all of the Securities of each series issuable hereunder which theretofore shall not have been signed by the Company and delivered to the Trustee; and, upon the order of such successor corporation instead of the Company and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the other Securities of such series theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. SECTION 12.04. Opinion of Counsel to be Given Trustee. The Trustee, subject to Sections 8.01 and 8.02, shall be entitled to receive and shall be fully protected in relying upon, an Officers' Certificate and 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. 84 76 ARTICLE THIRTEEN. SATISFACTION AND DISCHARGE OF INDENTURE. SECTION 13.01. Discharge of Indenture. When (a) the Company shall deliver to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen or in lieu of or in substitution for which other Securities shall have been authenticated and delivered) and not theretofore cancelled, or (b) all the Securities of any series not theretofore cancelled or delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and the Company shall deposit with the Trustee, in trust, funds (other than funds repaid by the Trustee to the Company in accordance with Section 13.04) sufficient to pay at maturity or upon redemption all of the Securities of such series (other than any Securities of such series which shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Securities shall have been authenticated and delivered or which shall have been paid) not theretofore cancelled or delivered to the Trustee for cancellation, including principal and premium, if any, and interest, if any, due or to become due to such date of maturity or redemption date, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then this Indenture shall cease to be of further effect with respect to Securities of such series, and the Trustee, on demand of the Company accompanied by an Officers' Certificate and an Opinion of Counsel as required by Section 15.07 and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture with respect to Securities of such series, the Company, however, hereby agreeing to reimburse the Trustee for any costs or expenses thereafter reasonably and property incurred and to compensate the Trustee for any services reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities. SECTION 13.02. Deposited Moneys to be Held in Trust by Trustee. All moneys deposited with the Trustee pursuant to Section 13.01 shall be held in trust and applied by it to the payment, either directly or through any paying 85 77 agent (including the Company if acting as its own paying agent), to the Holders of the particular Securities for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest and premium, if any. SECTION 13.03. Paying Agent to Repay Moneys Held. Upon the satisfaction and discharge of this Indenture, all moneys then held by any paying agent of the Securities (other than the Trustee) shall, upon demand of the Company, be repaid to it or paid to the Trustee, and thereupon such paying agent shall be released from all further liability with respect to such moneys. SECTION 13.04. Return of Unclaimed Moneys. Any moneys deposited with or paid to the Trustee for payment of the principal of (and premium, if any) or interest, if any, on Securities of any series and not applied but remaining unclaimed by the Holders of Securities of that series for three years after the date upon which the principal of, and premium, if any, or interest, if any, on such Securities, as the case may be, shall have become due and payable, shall, upon written demand, be repaid to the Company by the Trustee; and the Holder of any of such Securities shall thereafter look only to the Company for any payment which such Holder may be entitled to collect, provided, however, that, before being required to make any such repayment, the Trustee may (at the cost of the Company) mail to such Holders at their last known address or cause to be published once a week for two successive weeks, in each case on any day of the week, in an Authorized Newspaper in the Place of Payment, a notice (in such form as may be deemed appropriate by the Trustee) that said moneys remain unclaimed and that, after a date named therein, any unclaimed balance of said moneys then remaining will be returned to the Company (except that with respect to presentation of Securities for payment and transfer, such term shall mean the office or agency of the Trustee in said city at which at any particular time its corporate agency business shall be conducted). ARTICLE FOURTEEN. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS. SECTION 14.01. Indenture and Securities Solely Corporate Obligations. No recourse for the payment of the principal of or premium, if any, or 86 78 interest, if any, on any Security, or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Company in this Indenture or in any supplemental indenture, or in any Security, or because of the creation of any indebtedness represented thereby, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of the Securities. ARTICLE FIFTEEN. MISCELLANEOUS PROVISIONS. SECTION 15.01. Provisions, Binding on Company's Successors. All the covenants, stipulations, promises and agreements in this Indenture contained by the Company shall bind its successors and assigns whether so expressed or not. SECTION 15.02. Benefits of Indenture Restricted to Parties and Holders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and assigns and the Holders, any legal or equitable right, remedy or claim under or in respect of this Indenture, or under any covenant, condition or provision herein contained; and, subject to the provisions of Articles Nine and Fourteen, all of such covenants, conditions and provisions shall be for the sole benefit of the parties hereto and the Holders. SECTION 15.03. Official Acts by Successor Corporation. Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of the Company shall and may be done and performed with like force and effect by the like board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company. SECTION 15.04. Addresses for Notices, etc. Any notice or demand which by any provision of this Indenture is required or permitted to be given or 87 79 served by the Trustee or by the Holders of Securities on the Company shall be deemed to have been sufficiently given or served, for all purposes, if given or served at the office of the Treasurer at the principal office of the Company at 515 South Flower Street, Los Angeles, California 90071 (until another address is filed by the Company with the Trustee). Any notice, direction, request of demand by any Holder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at the Principal Office of the Trustee, addressed to the attention of its Corporate Trust Division. SECTION 15.05 Notices to Holders; Waiver. Where this Indenture or any Security provides for notice to Holders of any event, (1) if any of the Securities affected by such event are Registered Securities, such notice shall be sufficiently given (unless otherwise herein or in such Securities expressly provided) if in writing and mailed, first-class, postage prepaid, to each Registered Holder of such Securities, at his address as it appears on the registry books of the Company, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice and (2) if any of the Securities affected by such event are Unregistered Securities, such notice shall be sufficiently given (unless otherwise herein or in such Securities expressly provided) if published once in an Authorized Newspaper in the Place of Payment not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case, by reason of the suspension of publication of any Authorized Newspaper, or by mason of any other cause, it shall be impossible to make publication of any notice in one or more Authorized Newspapers as required by any Security or this Indenture, then such method of publication or notification as shall be made with the approval of the Trustee shall constitute a sufficient publication of such notice. 88 80 In case, by reason of the suspension of regular mail service as a result of a strike, work stoppage or otherwise, it shall be impractical to mail notice of any event to the Holders of Securities when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee and the Company shall be deemed to be a sufficient giving of such notice. SECTION 15.06. New York Contract. This Indenture and each Security shall be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State. SECTION 15.07. Evidence of Compliance with Conditions Precedent. Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this Indenture, the Company shall furnish to the Trustee an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with. Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture shall include ( 1) a statement that the person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinion contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her 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 or not, in the opinion of such person, such condition or covenant has been complied with. SECTION 15.08. Legal Holidays. In any case where the date of maturity of interest on or principal of the Securities or the date fixed for redemption of any Security will be a day on which banking institutions are authorized or obligated by law to close in The City of New York, New York, then payment of such interest and premium, if any, on or principal of the Securities need not be made on such date but may be made on the next 89 81 Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption and no interest shall accrue for the period from and after such date. SECTION 15.09. Trust Indenture Act to Control. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included in this Indenture by any of sections 310 to 317, inclusive, of the Trust Indenture Act of 1939, such required provision shall control. SECTION 15.10. No Security Interest Created Nothing in this Indenture or in the Securities, expressed or implied, shall be construed to constitute a security interest under the Uniform Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any jurisdiction where property of the Company or its Subsidiaries is located. SECTION 15.11. Table of Contents, Headings, etc. The table of contents and the titles and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof. SECTION 15.12. Execution in Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. SECTION 15.13. Acceptance of Trust. The Trustee hereby accepts the trusts declared and provided in this Indenture, upon the terms and conditions hereinabove set forth. 90 82 IN WITNESS WHEREOF, ATLANTIC RICHFIELD COMPANY has caused this indenture to be signed and acknowledged by its Chairman of the Board, its President, its Executive Vice President and Chief Financial Officer or its Senior Vice President and Treasurer, and its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or an Assistant Secretary, and THE BANK OF NEW YORK has caused this Indenture to be signed and acknowledged by one of its Vice Presidents or Assistant Vice Presidents, has caused its corporate seal to be affixed hereunto, and the same to be attested by its Secretary or one of its Assistant Secretaries, as of the day and year first written above. ATLANTIC RICHFIELD COMPANY (SEAL) By /s/ CAMRON COOPER -------------------------------------- Senior Vice President and Treasurer Attest: /s/ DIANE A. WARD - ----------------------------- Assistant Secretary THE BANK OF NEW YORK, as Trustee (SEAL) By /s/ WALTER N. GITLIN ------------------------------------- Vice President Attest /s/ LOUIS J. HACK - ----------------------------- Assistant Secretary 91 83 STATE OF CALIFORNIA ) ) ss.: COUNTY OF LOS ANGELES ) On the 3rd day of January, 1992, before me personally came CAMRON COOPER, to me known, who, being by me duly sworn, did depose and say that she resides at Pasadena, California; that she is Senior Vice President and Treasurer of Atlantic Richfield Company, one of the corporations described in and which executed the above instrument; that she knows the corporate seal of said corporation; that the seal affixed to said instrument is said corporate seal; that it was so affixed by the authority of the Board of Directors of said corporation; and that she signed her name thereto by like authority. /s/ ELLEN L. BUNDA ------------------------------------- [Notary Public] (Seal) OFFICIAL SEAL [CALIFORNIA ELLEN L. BUNDA STATE Notary Public - California SEAL] LOS ANGELES COUNTY My Commission Expires December 27, 1993 92 84 STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) On the 2nd day of January, 1992, before me personally came Walter N. Gitlin, to me known, who, being by me duly sworn, did depose and say that he resides at Staten Island, NY 10301, that he is a Vice President of The Bank of New York, one of the corporations described in and which executed the above instrument; that he knows the corporate seal of said corporation; that the seal affixed to the 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/ MARION PAPADOGONAS ------------------------------------- [Notary Public] (Seal) MARION PAPADOGONAS Notary Public, State of New York No. 314842989 Qualified in New York County Commission Expires May 31, 1993 EX-5 6 OPINION WITH CONSENT OF DIANE A. WARD, ESQ. 1 Exhibit 5 ARCO [LOGO] Legal 515 South Flower Street Mailing Address: Box 2679-T.A. Los Angeles, California 90051 Telephone (213) 486-2808 E-mail dward@mail.arco.com Diane A. Ward Counsel - Securities and Finance January 27, 1999 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Re: REGISTRATION STATEMENT OF FORM S-3 Ladies and Gentlemen: I am familiar with all corporate and other proceedings taken by Atlantic Richfield Company, a Delaware corporation ("ARCO"), in connection with the authorization of its Debt Securities ("Securities") in an aggregate principal amount of $1.5 billion. I am of the opinion that the Securities have been duly authorized and, when the securities have been executed and authenticated in the manner set forth in the Indenture and issued and delivered in the manner set forth in the Indenture against payment therefor, the Securities will have been validly executed, authenticated, issued, and delivered, will constitute the legal, valid, and binding obligations of ARCO, will (subject to applicable bankruptcy, insolvency, and other laws affecting the enforceability of creditors' rights generally and to general principles of equity) be enforceable as to ARCO in accordance with their terms, and will be entitled to the benefits provided by the Indenture. I hereby consent to the references to me under the heading "Legal Opinion" in the Prospectus to be filed as a part of the Registration Statement and to the filing of this opinion or copies thereof as an Exhibit to the Registration Statement. Very truly yours, /s/ Diane A. Ward Diane A. Ward EX-12 7 STATEMENT OF COMPUTATION OF RATIO OF EARNINGS 1 EXHIBIT 12 ATLANTIC RICHFIELD COMPANY STATEMENT SETTING FORTH DETAIL OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES -- UNAUDITED (MILLIONS OF DOLLARS)
YEAR ENDED DECEMBER 31 ----------------------------------------------------------------- 1998 1997 1996 1995 1994 -------- -------- -------- -------- -------- Income (loss) from continuing operations before income taxes and minority interest(1).............. $(1,282) $1,878 $2,086 $1,112 $ 740 Less: Undistributed income of less than 50% owned subsidiaries (net of losses)(2)......................................... (20) 5 6 -- -- ------ ------ ------ ------ ------ Fixed charges: Interest expense charged to income, interest of appropriate unconsolidated subsidiaries, and portion of rentals representative of interest(3).................................... 493 522 615 702 712 Capitalized interest................................. 106 38 19 48 35 ------ ------ ------ ------ ------ Total fixed charges.................................. 599 560 634 750 747 ------ ------ ------ ------ ------ Earnings (deficit) (1) + (2) + (3)................... $(809) $2,405 $2,707 $1,814 $1,452 ====== ====== ====== ====== ====== Ratio of earnings to fixed charges(a)................ (1.35) 4.29 4.27 2.42 1.94 ====== ====== ====== ====== ======
- --------------- (a) In 1998, the negative ratio indicates a less than one-to-one earnings coverage of fixed charges. Fixed charges of $599 million combined with an earnings deficit of $809 million per the ratio of earnings to fixed charges calculation resulted in a $1.4 billion deficiency in a one-to-one earnings coverage of fixed charges in 1998. The deficiency includes a before tax net charge of approximately $1.35 billion for asset writedowns, restructuring costs and a tax refund in the fourth quarter of 1998. EX-23.2 8 CONSENT OF PRICEWATERHOUSECOOPERS LLP 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this registration statement of Atlantic Richfield Company (the "Company") on Form S-3 (File No. 333-______) of our report dated February 12, 1998, on our audits of the consolidated financial statements and related financial statement schedule of Atlantic Richfield Company as of December 31, 1997 and 1996 and for each of the three years in the period ended December 31, 1997 included in the Company's Annual Report on Form 10-K for the year ended December 31, 1997. We also consent to the reference to our firm under the caption "Experts" in the prospectus forming a part of this registration statement. PricewaterhouseCoopers LLP Los Angeles, California January 25, 1999 EX-24 9 POWER OF ATTORNEY 1 EXHIBIT 24 POWER OF ATTORNEY Each person signature appears below hereby constitutes and appoints Marie L. Knowles, J. Kenneth Thompson, Donald R. Voelte, Jr., Michael E. Wiley, Bruce G. Whitmore, Terry G. Dallas and Allan L. Comstock, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, in connection with the issuance of any securities authorized by the Board of Directors of Atlantic Richfield Company (the "Company") or by the Executive Committee thereof pursuant to due authorization by such Board for issuance by the Company, (1) to execute and file, or cause to be filed, with the Securities and Exchange Commission (the "Commission"), (A) Registration Statements and any and all amendments (including post-effective amendments) thereto and to file, or cause to be filed, all exhibits thereto and other documents in connection therewith as required by the Commission in connection with such registration under the Securities Act of 1933, as amended, and (B) any report or other document required to be filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended, (2) to execute and file, or cause to be filed, any application for registration or exemption therefrom, any report or any other document required to be filed by the Company under the Blue Sky or securities laws of any of the United States, and to furnish any other information required in connection therewith, (3) to execute and file, or cause to be filed, any application for registration or exemption therefrom under the securities laws of any jurisdiction outside the United States, including any reports or other documents required to be filed subsequent to the issuance of such securities, and (4) to execute and file, or cause to be filed, any application for listing such securities on the New York Stock Exchange, the Pacific Stock Exchange, the London Stock Exchange or any other securities exchange in any other jurisdiction where any such securities are proposed to be sold, granting to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act required to be done as he or she might or could do in person, hereby ratifying and confirming all that such attorneys-in-fact and agents, and each of them, may lawfully do or cause to be done by virtue of this power of attorney. Each person whose signature appears below may at any time revoke this power of attorney as to himself or herself only by an instrument in writing specifying that this power of attorney is revoked as to him or her as of the date of execution of such instrument or at a subsequent specified date. This power of attorney shall be revoked automatically with respect to any person whose signature appears below effective on the date he or she ceases to be a member of the Board of Directors or an officer of the Company. Any revocation hereof shall not void or otherwise affect any acts performed by any attorney-in-fact and agent named herein pursuant to this power of attorney prior to the effective date of such revocation. Dated as of January 25, 1999. Signature Title --------- ----- /s/ MIKE R. BOWLIN Chairman of the Board and - ----------------------------------- Chief Executive Officer Mike R. Bowlin Principal executive officer 1 2
Signature Title --------- ----- /s/ Michael E. Wiley President and - --------------------------- Chief Operating Officer Michael E. Wiley /s/ Marie L. Knowles Executive Vice President and - --------------------------- Chief Financial Officer Marie L. Knowles Principal financial officer /s/ J. Kenneth Thompson Executive Vice President - --------------------------- J. Kenneth Thompson /s/ Donald R. Voelte, Jr. Executive Vice President - --------------------------- Donald R. Voelte, Jr. /s/ Frank D. Boren Director - --------------------------- Frank D. Boren /s/ John Gavin Director - -------------------------- John Gavin /s/ Kent Kresa Director - -------------------------- Kent Kresa /s/ Arnold G. Langbo Director - -------------------------- Arnold G. Langbo
3
Signature Title --------- ----- /s/ David T. McLaughlin - ---------------------------- Director David T. McLaughlin /s/ John B. Slaughter Director - ---------------------------- John B. Slaughter /s/ Gary L. Tooker Director - ---------------------------- Gary L. Tooker /s/ Henry Wendt Director - ---------------------------- Henry Wendt /s/ Gayle E. Wilson Director - ---------------------------- Gayle E. Wilson /s/ Allan L. Comstock Vice President and - ---------------------------- Controller Allan L. Comstock Principal accounting officer
EX-25.1 10 STATEMENT OF ELIGIBILITY OF THE CHASE MANHATTAN 1 EXHIBIT 25.1 ------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 ------------------------- FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE ------------------------------------------- CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________ ---------------------------------------- THE CHASE MANHATTAN BANK (Exact name of trustee as specified in its charter) NEW YORK 13-4994650 (State of incorporation (I.R.S. employer if not a national bank) identification No.) 270 PARK AVENUE NEW YORK, NEW YORK 10017 (Address of principal executive offices) (Zip Code)
William H. McDavid General Counsel 270 Park Avenue New York, New York 10017 Tel: (212) 270-2611 (Name, address and telephone number of agent for service) -------------------------------------------- ATLANTIC RICHFIELD COMPANY (Exact name of obligor as specified in its charter) DELAWARE 23-0371610 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification No.) 515 SOUTH FLOWER STREET LOS ANGELES, CALIFORNIA 90071 (Address of principal executive offices) (Zip Code)
-------------------------------------------- DEBT SECURITIES (Title of the indenture securities) -------------------------------------------- 2 GENERAL Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. New York State Banking Department, State House, Albany, New York 12110. Board of Governors of the Federal Reserve System, Washington, D.C., 20551 Federal Reserve Bank of New York, District No. 2, 33 Liberty Street, New York, N.Y. Federal Deposit Insurance Corporation, Washington, D.C., 20429. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. - 2 - 3 Item 16. List of Exhibits List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the Articles of Association of the Trustee as now in effect, including the Organization Certificate and the Certificates of Amendment dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982, February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 2. A copy of the Certificate of Authority of the Trustee to Commence Business (see Exhibit 2 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 3. None, authorization to exercise corporate trust powers being contained in the documents identified above as Exhibits 1 and 2. 4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form T-1 filed in connection with Registration Statement No. 333-06249, which is incorporated by reference). 5. Not applicable. 6. The consent of the Trustee required by Section 321(b) of the Act (see Exhibit 6 to Form T-1 filed in connection with Registration Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in connection with the merger of Chemical Bank and The Chase Manhattan Bank (National Association), Chemical Bank, the surviving corporation, was renamed The Chase Manhattan Bank). 7. A copy of the latest report of condition of the Trustee, published pursuant to law or the requirements of its supervising or examining authority. 8. Not applicable. 9. Not applicable. SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939 the Trustee, The Chase Manhattan Bank, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of New York and State of New York, on the 29TH day of DECEMBER, 1998. THE CHASE MANHATTAN BANK By /s/ Ronald J. Halleran -------------------------- Ronald J. Halleran Second Vice President - 3 - 4 Exhibit 7 to Form T-1 Bank Call Notice RESERVE DISTRICT NO. 2 CONSOLIDATED REPORT OF CONDITION OF The Chase Manhattan Bank of 270 Park Avenue, New York, New York 10017 and Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business September 30, 1998, in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
DOLLAR AMOUNTS ASSETS IN MILLIONS ------ ----------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin .................................................. $ 11,951 Interest-bearing balances .......................................... 4,551 Securities: ............................................................ Held to maturity securities.............................................. 1,740 Available for sale securities............................................ 48,537 Federal funds sold and securities purchased under agreements to resell ............................................... 29,730 Loans and lease financing receivables: Loans and leases, net of unearned income $127,379 Less: Allowance for loan and lease losses 2,719 Less: Allocated transfer risk reserve ......... 0 -------- Loans and leases, net of unearned income, allowance, and reserve ............................................. 124,660 Trading Assets .......................................................... 51,549 Premises and fixed assets (including capitalized leases)............................................................. 3,009 Other real estate owned ................................................. 272 Investments in unconsolidated subsidiaries and associated companies................................................ 300 Customers' liability to this bank on acceptances outstanding ........................................................ 1,329 Intangible assets ....................................................... 1,429 Other assets ............................................................ 13,563 -------- TOTAL ASSETS ............................................................ $ 292,620 =========
- 4 - 5 LIABILITIES Deposits In domestic offices ................................................ $ 98,760 Noninterest-bearing .................................. $39,071 Interest-bearing ..................................... 59,689 ------- In foreign offices, Edge and Agreement, subsidiaries and IBF's ............................................. 75,403 Noninterest-bearing .................................. $ 3,877 Interest-bearing ..................................... 71,526 Federal funds purchased and securities sold under agree- ments to repurchase ..................................................... 34,471 Demand notes issued to the U.S. Treasury ................................ 1,000 Trading liabilities ..................................................... 41,589 Otherborrowed money (includes mortgage indebtedness and obligations under capitalized leases): With a remaining maturity of one year or less ...................... 3,781 With a remaining maturity of more than one year . through three years.......................................... 213 With a remaining maturity of more than three years.................. 104 Bank's liability on acceptances executed and outstanding................. 1,329 Subordinated notes and debentures ....................................... 5,408 Other liabilities ....................................................... 12,041 TOTAL LIABILITIES ....................................................... 274,099 --------- EQUITY CAPITAL Perpetual preferred stock and related surplus............................ 0 Common stock ............................................................ 1,211 Surplus (exclude all surplus related to preferred stock)................ 10,441 Undivided profits and capital reserves .................................. 6,287 Net unrealized holding gains (losses) on available-for-sale securities ........................................ 566 Cumulative foreign currency translation adjustments ..................... 16 TOTAL EQUITY CAPITAL .................................................... 18,521 --------- TOTAL LIABILITIES AND EQUITY CAPITAL .................................... $ 292,620 =========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true to the best of my knowledge and belief. JOSEPH L. SCLAFANI We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct. WALTER V. SHIPLEY ) THOMAS G. LABRECQUE ) DIRECTORS WILLIAM B. HARRISON, JR.) -5- EX-25.2 11 STATEMENT OF ELIGIBILITY OF THE BANK OF NEW YORK 1 EXHIBIT 25.2 ================================================================================ FORM T-1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) [ ] THE BANK OF NEW YORK (Exact name of trustee as specified in its charter) New York 13-5160382 (State of incorporation (I.R.S. employer if not a U.S. national bank) identification no.) One Wall Street, New York, N.Y. 10286 (Address of principal executive offices) (Zip code)
---------- ATLANTIC RICHFIELD COMPANY (Exact name of obligor as specified in its charter) Delaware 23-0371610 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 515 South Flower Street Los Angeles, California 90071 (Address of principal executive offices) (Zip code)
---------------------- Debt Securities (Title of the indenture securities) ================================================================================ 2 1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE: (a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
- ---------------------------------------------------------------------------------------------------- Name Address - ---------------------------------------------------------------------------------------------------- Superintendent of Banks of the State of 2 Rector Street, New York, New York N.Y. 10006, and Albany, N.Y. 12203 Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045 Federal Deposit Insurance Corporation Washington, D.C. 20429 New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS. Yes. 2. AFFILIATIONS WITH OBLIGOR. IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH AFFILIATION. None. 16. LIST OF EXHIBITS. EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE 7a-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R. 229.10(d). 1. A copy of the Organization Certificate of The Bank of New York (formerly Irving Trust Company) as now in effect, which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637.) 4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1 filed with Registration Statement No. 33-31019.) 6. The consent of the Trustee required by Section 321(b) of the Act. (Exhibit 6 to Form T-1 filed with Registration Statement No. 33-44051.) 7. A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority. -2- 3 SIGNATURE Pursuant to the requirements of the Act, the Trustee, The Bank of New York, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 29th day of December, 1998. THE BANK OF NEW YORK By: /s/ MARIE E. TRIMBOLI ----------------------------- Name: Marie E. Trimboli Title: Assistant Treasurer 4 Consolidated Report of Condition of THE BANK OF NEW YORK of 48 Wall Street, New York, N.Y. 10286 And Foreign and Domestic Subsidiaries, a member of the Federal Reserve System, at the close of business June 30, 1998, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
ASSETS Dollar Amounts in Thousands -------------- Cash and balances due from depository institutions: Noninterest-bearing balances and currency and coin. $7,301,241 Interest-bearing balances.......................... 1,385,944 Securities: Held-to-maturity securities........................ 1,000,737 Available-for-sale securities...................... 4,240,655 Federal funds sold and Securities purchased under 971,453 agreements to resell............................... Loans and lease financing receivables: Loans and leases, net of unearned income............... 38,788.269 LESS: Allowance for loan and lease losses............632,875 LESS: Allocated transfer risk reserve........................0 Loans and leases, net of unearned income, 38,155,394 allowance, and reserve........................... Assets held in trading accounts....................... 1,307,562 Premises and fixed assets (including capitalized 670,445 leases)............................................ Other real estate owned............................... 13,598 Investments in unconsolidated subsidiaries and 215,024 associated companies............................... Customers' liability to this bank on acceptances 974,237 outstanding........................................ Intangible assets..................................... 1,102,625 Other assets.......................................... 1,944,777 ----------- Total assets.......................................... $59,283,692 =========== LIABILITIES Deposits: In domestic offices................................ $26,930,258 Noninterest-bearing......................11,579.390 Interest-bearing.........................15,350,868 In foreign offices, Edge and Agreement 16,117,854 subsidiaries, and IBFs........................... Noninterest-bearing.........................187,464 Interest-bearing.........................15,930,390 Federal funds purchased and Securities sold under 2,170,238 agreements to repurchase........................... Demand notes issued to the U.S.Treasury............... 300,000 Trading liabilities................................... 1,310,867 Other borrowed money: With remaining maturity of one year or less........ 2,549,479 With remaining maturity of more than one year 0 through three years.............................. With remaining maturity of more than three years... 46,654 Bank's liability on acceptances executed and 983,398 outstanding........................................ Subordinated notes and debentures..................... 1,314,000 Other liabilities..................................... 2,295,520 ----------- Total liabilities..................................... 54,018,268 ----------- EQUITY CAPITAL Common stock.......................................... 1,135,284 Surplus............................................... 731,319 Undivided profits and capital reserves................ 3,385,227 Net unrealized holding gains (losses) on 51,233 available-for-sale securities...................... Cumulative foreign currency translation adjustments... ( 37,639) ----------- Total equity capital.................................. 5,265,424 ----------- Total liabilities and equity capital.................. $59,283,692 ===========
I, Robert E. Keilman, Senior Vice President and Comptroller of the above-named bank do hereby declare that this Report of Condition has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true to the best of my knowledge and belief. Robert E. Keilman We, the undersigned directors, attest to the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the Board of Governors of the Federal Reserve System and is true and correct. - J. Carter Bacot Thomas A. Renyi - Directors Alan R. Griffith - - -------------------------------------------------------------------------------- EX-99 12 FORM OF INDEMNITY AGREEMENT 1 EXHIBIT 99 FORM OF INDEMNITY AGREEMENT This Indemnity Agreement is made this day of by and between Atlantic Richfield Company, a Delaware corporation ("ARCO"), and ("Indemnitee"). RECITALS Section 25 of ARCO's By-Laws provides that ARCO shall indemnify the Indemnitee to the fullest extent authorized by the General Corporation Law of Delaware, as the same exists or may hereafter be amended. The By-Laws (Section 25(e)) also provide that ARCO may from time to time enter into indemnity agreements with the persons who are members of its Board of Directors and with such officers and other persons as the Board may designate, such indemnity agreements to provide in substance that ARCO will indemnify such person to the fullest extent of the provisions of the By-Laws. The General Corporation Law of Delaware (Section 145(f)) also provides that the indemnification authorized by that Law shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled by law, agreement or otherwise and ARCO's By-Laws (Section 25(c)) likewise provide that the right to indemnification and the payment of expenses confirmed by the By-Law shall not be exclusive of any other right which any person may have or hereafter acquire under any agreement or otherwise. In exercising its discretion to authorize this Agreement, the Board of Directors has considered the following, among other factors: (a) It is essential to ARCO to attract and retain as directors and officers the most capable persons available. (b) The substantial increase in corporate litigation that may subject directors and officers to litigation costs and risks and the recent limitations on the availability of directors' and officers' liability insurance have made and will make it increasingly difficult for ARCO to attract and retain such persons. (c) When obtainable, insurance policies relating to indemnification are often subject to retentions by the insured, co-insurance requirements, exclusions and other limitations on coverage. In view of the foregoing and in recognition of the Indemnitee's need for substantial protection against personal liability in order to assure the Indemnitee's continued service to ARCO in an effective manner and the Indemnitee's reliance on the provisions of ARCO's By-Laws, and in part to provide the Indemnitee with specific contractual assurance that the protection promised by the By-Laws will be available to the Indemnitee (regardless of, among other things, any amendment to or revocation of such By-Laws or any change in the composition of ARCO's Board of Directors or any acquisition transaction relating to ARCO). ARCO wishes to provide in this Agreement for the indemnification of and the advancing of expenses to the Indemnitee to the fullest extent (whether partial or complete) permitted by law and as set forth in this Agreement, and, to the extent insurance is maintained, for the continued coverage of the Indemnitee under ARCO's directors' and officers' liability insurance policies. 1 2 A G R E E M E N T In consideration of Indemnitee's continued service to ARCO, ARCO hereby agrees with the Indemnitee as follows: Section 1. DEFINITIONS. a. Change in Control: shall be deemed to have occurred if (i) any "person" (as defined in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as amended) is or becomes the beneficial owner, directly or indirectly, of securities of ARCO representing 25% or more of the total voting power represented by ARCO's then outstanding Voting Securities, or (ii) there shall occur a change in the composition of a majority of the Board of Directors of ARCO within a three-year period which change shall not have been approved by a majority of the persons then surviving as Directors who also comprised the Board of Directors of ARCO immediately prior to the commencement of such period, or (iii) the stockholders of ARCO approve a merger or consolidation of ARCO with any other corporation, other than a merger or consolidation which would result in the Voting Securities of ARCO outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 80% of the total voting power represented by the Voting Securities of ARCO or such surviving entity outstanding immediately after such merger or consolidation, or (iv) the stockholders of ARCO approve a plan of complete liquidation of ARCO or an agreement for the sale or disposition by ARCO (in one transaction or a series of transactions) of all or substantially all of ARCO's assets. b. Claim: any threatened, pending or completed action, suit or proceeding, or any inquiry or investigation that the Indemnitee in good faith believes might lead to the institution of any such action, suit or proceeding, whether civil, criminal, administrative, investigative or other. c. Potential Change in Control: shall be deemed to have occurred if (i) ARCO enters into an agreement or arrangement, the consummation of which would result in the occurrence of a Change in Control; (ii) any person (including ARCO) publicly announces an intention to take or to consider taking actions which if consummated would constitute a Change in Control; (iii) any person, other than a trustee or other fiduciary, holding securities under an employee benefit plan of ARCO acting in such capacity, or a corporation owned, directly or indirectly, by the stockholders of ARCO in substantially the same proportions as their ownership of stock of ARCO, who is or becomes the beneficial owner, directly or indirectly, of securities of ARCO representing 10% or more of the combined voting power of ARCO's then outstanding Voting Securities, increases such person's beneficial ownership of such securities by 5% or more over the percentage so owned by such person on the date hereof; or (iv) the Board of Directors adopts a resolution to the effect that, for purposes of this Agreement, a Potential Change in Control has occurred. d. Reviewing Party: the Senior Vice President and General Counsel or any appropriate person or body selected by ARCO's Board of Directors who is not a party to the particular Claim for which the Indemnitee is seeking indemnification, and, if there has been a Change in Control (other than a Change in Control which has been approved by a majority of persons then surviving as Directors who comprised ARCO's Board of Directors immediately prior to such Change in Control), the Reviewing Party shall be the special independent counsel referred to in Section 5 of this Agreement. e. Voting Securities: any securities of ARCO having the right under ordinary circumstances to vote at an election of the Board of Directors. 2 3 Section 2. GENERAL RIGHT TO INDEMNIFICATION. Subject to Sections 3 and 4d, ARCO shall indemnify the Indemnitee in the event that Indemnitee was or is a party or is threatened to be made a party to or is involved or is threatened to be involved (as a witness or otherwise) in or otherwise required representation by counsel in connection with any Claim, by reason of the fact that Indemnitee is or was a director or officer of ARCO or is or was serving at the request of ARCO as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, and the basis of such Claim is alleged action or inaction in an official capacity or in any other capacity while serving as such a director, officer, employee or agent, and Indemnitee shall be indemnified and held harmless by ARCO to the fullest extent permitted by the General Corporation Law of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment with reference to events occurring prior to the effective date thereof, only to the extent that such amendment permits ARCO to provide broader indemnification rights than such law permitted ARCO to provide prior to such amendment), against all costs, charges, expenses, liabilities and losses (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to the Indemnitee when the Indemnitee has ceased to be a director or officer (or to serve another entity at the request of ARCO) and shall inure to the benefit of the Indemnitee's heirs, personal representative and estate. Section 3. REVIEWING PARTY. Notwithstanding the foregoing, the obligation of ARCO under Section 2 of this Agreement shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 5 of this Agreement is involved) that the Indemnitee would not be permitted to be indemnified under applicable law. Section 4. RIGHT OF INDEMNITEE TO BRING SUIT. The rights of the Indemnitee to bring suit against ARCO under this Agreement include the following: a. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that the Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, the Indemnitee shall have the right to bring suit seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and ARCO hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on ARCO and the Indemnitee. b. If a claim for advances under Section 7 is not paid in full by ARCO within sixty days after a written claim has been received by ARCO, the Indemnitee may at any time thereafter bring suit against ARCO to recover the unpaid amount. If successful in whole or in part, the Indemnitee shall be entitled to be paid also the expense of prosecuting such claim. c. In any action brought by the Indemnitee to enforce a right to indemnification hereunder, or by ARCO to recover payments by ARCO of expenses incurred by the Indemnitee in connection with a Claim in advance of its final disposition, the burden of proving that the Indemnitee is not entitled to be indemnified under this Section or otherwise shall be on ARCO. Neither the failure of ARCO (including its Board of Directors, independent legal counsel, other Reviewing Party or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the General Corporation Law of Delaware, nor an actual determination by the Company (including its Board of Directors, independent legal counsel, other Reviewing Party or its stockholders) that the Indemnitee has not met 3 4 such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such an action brought by the Indemnitee, be a defense to the action. d. Notwithstanding any provisions to the contrary and except as provided in this Section, ARCO shall indemnify the Indemnitee in connection with a proceeding (or part thereof) initiated by the Indemnitee against ARCO only if such proceeding (or part thereof) was authorized prior to its initiation by a majority of the disinterested members of the Board of Directors of ARCO. The rights to indemnification confirmed by this paragraph shall include the right to be paid by ARCO any expenses incurred in defending such proceeding in advance of its final disposition. Section 5. CHANGE IN CONTROL. ARCO agrees that if there is a Change in Control of ARCO (other than a Change in Control which has been approved by a majority of the persons surviving as Directors who comprised ARCO's Board of Directors immediately prior to such Change in Control) then with respect to all matters thereafter arising concerning the rights of the Indemnitee to indemnity payments and advances under this Agreement, ARCO shall seek legal advice only from special, independent counsel selected by the Indemnitee and approved by ARCO (which approval shall not be unreasonably withheld), and who has not otherwise performed services within the last 5 years for ARCO or any "person" referred to in clause (i) of Section 1a hereof or "other corporation" referred to in clause (iii) of that Section (other than in connection with such matters) or for the Indemnitee. Such counsel, among other things, shall render its written opinion to ARCO and the Indemnitee as to whether and to what extent the Indemnitee would be permitted to be indemnified under applicable law. ARCO agrees to provide full cooperation to and to pay the reasonable fees of the special, independent counsel referred to above and to indemnify fully such counsel against any and all expenses (including attorneys' fees), claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. Section 6. INDEMNIFICATION FOR COSTS, CHARGES AND EXPENSES OF SUCCESSFUL PARTY. Notwithstanding the other provisions of this Agreement, to the extent that the Indemnitee has been successful on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, in defense of any Claim covered by this Agreement, or in defense of any claim, issue or matter therein, the Indemnitee shall be indemnified against all costs, charges and expenses, including attorneys' fees, actually and reasonably incurred by the Indemnitee or on Indemnitee's behalf in connection therewith. Section 7. ADVANCES. Expenses incurred by the Indemnitee in defending any Claim, including attorneys' fees, judgments, fines and amounts paid in settlements shall be paid by ARCO in advance of the final disposition of the Claim, provided, however, that if the General Corporation Law of Delaware requires, payment shall be made to or on behalf of the Indemnitee only upon delivery to ARCO of an undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by ARCO under Delaware law. Section 8. PROCEDURE FOR INDEMNIFICATION. After the final disposition of any Claim covered by this Agreement, the Indemnitee shall send to ARCO a written request for any indemnification sought under this Agreement. No later than 30 days following receipt by ARCO of such request, ARCO shall deliver such request to an appropriate Reviewing Party for its review pursuant to this Agreement and shall cause the indemnification provided hereunder to be authorized and paid, so long as during such 30-day period, the Reviewing Party has not determined that indemnification would not be permitted under applicable law. The Indemnitee and Indemnitee's counsel shall be given an opportunity to be heard and to present evidence on the Indemnitee's behalf in connection with consideration by the Reviewing Party. 4 5 Section 9. ESTABLISHMENT OF TRUST. In the event of a Potential Change in Control, ARCO shall, upon written request by the indemnitee, create a trust for the benefit of the Indemnitee and from time to time upon written request of the Indemnitee shall fund such trust in an amount sufficient to satisfy any and all expenses reasonably anticipated at the time of each such request to be incurred in connection with investigating, preparing for and defending any Claim, and any and all judgments, fines, penalties and settlement amounts of any and all Claims covered by this Agreement, from time to time actually paid or claimed, reasonably anticipated or proposed to be paid. The terms of the trust shall provide that upon a Change in Control (A) the trust shall not be revoked or the principal thereof invaded, without the written consent of the Indemnitee, (B) the trustee shall advance within two business days of a request by the Indemnitee any and all expenses to the Indemnitee (and the Indemnitee hereby agrees to reimburse the trust under the circumstances under which the Indemnitee would be required to reimburse ARCO under Section 2 of this Agreement), (C) the trust shall continue to be funded by ARCO in accordance with the funding obligation set forth above, (D) the trustee shall promptly pay to the Indemnitee all amounts for which the Indemnitee shall be entitled to indemnification pursuant to this Agreement or otherwise, and (E) all unexpended funds in such trust shall revert to ARCO upon a final determination, by a court of competent jurisdiction, that the Indemnitee has been fully indemnified under the terms of this Agreement. The trustee shall be chosen by the Indemnitee. Nothing in this Section 9 shall relieve ARCO of any of its obligations under this Agreement. Section 10. INSURANCE. To the extent ARCO maintains an insurance policy or policies providing directors' and officers' liability insurance, the Indemnitee shall be covered by such policy or policies, in accordance with its or their terms, to the maximum extent of the coverage available for ARCO's directors or officers. Section 11. NOTICE TO COMPANY. The Indemnitee must provide prompt written notice to ARCO of any Claim in connection with which the Indemnitee may assert a right to be indemnified hereunder; however, failure to provide such notice shall not be construed as a waiver of any right of the Indemnitee to an advance or indemnification hereunder. Section 12. OTHER RIGHTS; CONTINUATION OF RIGHT TO INDEMNIFICATION. The indemnification and advances provided by this Agreement shall not be deemed exclusive of any other rights to which the Indemnitee seeking indemnification may be entitled under any law (common or statutory), provision of ARCO's Certificate of Incorporation or By-Laws, vote of stockholders or disinterested directors, or otherwise, both as to action in the Indemnitee's official capacity and as to action in another capacity while holding office or while employed by or acting as agent for ARCO, and shall continue as to a person who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee. Section 13. SUBROGATION. In the event of payment under this Agreement, ARCO shall be subrogated to the extent of such payment to all of the rights of recovery of the Indemnitee, who shall execute all papers required and shall do everything that may be necessary to secure such rights, including the execution of such documents necessary to enable ARCO effectively to bring suit to enforce such rights. Section 14. NO DUPLICATION OF PAYMENTS. ARCO shall not be liable under this Agreement to make any payment in connection with any claim made against the Indemnitee to the extent the Indemnitee has otherwise actually received payment (under any insurance policy or otherwise) of the amounts otherwise indemnifiable hereunder. Section 15. AMENDMENTS. This Agreement may not be amended without the agreement in writing of ARCO and the Indemnitee. Section 16. SAVINGS CLAUSE. If this Agreement or any portion hereof shall be deemed invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, 5 6 and ARCO shall nevertheless indemnify the Indemnitee as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any Claim to the full extent permitted by any applicable portion of this Agreement that shall not have been invalidated and to the full extent permitted by applicable law. Section 17. SURVIVAL CLAUSE. ARCO acknowledges that in continuing to provide services to ARCO, the Indemnitee is relying on this Agreement. Accordingly, ARCO agrees that its obligations hereunder will survive (A) any actual or purported termination of this Agreement by ARCO or its successors or assigns whether by operation of law or otherwise, and (B) termination of the Indemnitee's services to ARCO, whether such services were terminated by ARCO or the Indemnitee, with respect to any Claim, whether or not such Claim is made, threatened or commenced before or after the actual purported termination of this Agreement or the termination of the Indemnitee's services to ARCO. Section 18. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and their respective successors, assigns, including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of ARCO, spouses, heirs, and personal and legal representatives. ARCO shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all of the business and/or assets of ARCO, by written agreement in form and substance satisfactory to the Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that ARCO would be required to perform if no such succession had taken place. Section 19. GOVERNING LAW. This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the State of Delaware (without giving effect to the provisions thereof relating to conflicts of law). IN WITNESS WHEREOF, this Agreement has been executed by the parties thereto, and in the case of ARCO, by a duly authorized officer thereof on its behalf. ATLANTIC RICHFIELD COMPANY By: ---------------------------- Attest: - -------------------------------- Corporate Secretary -------------------------------- Indemnitee 6 -----END PRIVACY-ENHANCED MESSAGE-----