-----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, M/Op8VETjFfjN8RImjaU7QyKdJD1vEfwjuzjimnfHCZlqgo4OVlp/jDpuWRvEWKI sci67nU7fkjsGZDx8GIxCQ== 0000950162-01-000168.txt : 20010209 0000950162-01-000168.hdr.sgml : 20010209 ACCESSION NUMBER: 0000950162-01-000168 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 13 CONFORMED PERIOD OF REPORT: 20010207 ITEM INFORMATION: FILED AS OF DATE: 20010208 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BURLINGTON RESOURCES INC CENTRAL INDEX KEY: 0000833320 STANDARD INDUSTRIAL CLASSIFICATION: CRUDE PETROLEUM & NATURAL GAS [1311] IRS NUMBER: 911413284 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09971 FILM NUMBER: 1528114 BUSINESS ADDRESS: STREET 1: 5051 WESTHEIMER STREET 2: SUITE 1400 CITY: HOUSTON STATE: TX ZIP: 77056 BUSINESS PHONE: 7136249500 MAIL ADDRESS: STREET 1: 5051 WESTHEIMER STREET 2: STE 1400 CITY: HOUSTON STATE: TX ZIP: 77056 8-K 1 0001.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported): February 8, 2001 BURLINGTON RESOURCES INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) Delaware 1-9971 91-1413284 - -------------------------------- ----------------- ------------------- (State or other Jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 5051 Westheimer, Houston, Texas 77056-2124 - ----------------------------------------------------- ----------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: 713-624-9500 -2- Item 7. Financial Statements and Exhibits Exhibit No. Description 1 Form of Standard Provisions of Underwriting Agreement among Burlington Resources Finance Company and the Underwriter(s) with respect to Debt Securities of Burlington Resources Finance Company. 4.1 Form of Indenture of Burlington Resources Finance Company. 4.2 Form of Guarantee Agreement of Burlington Resources Inc. with respect to Senior Debt Securities of Burlington Resources Finance Company. 4.3 Form of Senior Debt Security of Burlington Resources Finance Company with Form of Guarantee of Burlington Resources Inc. 5.1 Opinion of Cahill Gordon & Reindel. 5.2 Opinion of Stewart McKelvey Stirling Scales. 8.1 Opinion of White & Case LLP as to certain United States federal income tax matters. 8.2 Opinion of Bennett Jones LLP as to certain Canadian federal income tax matters. 10.1 Form of First Amendment and Restatement of the Short-Term Revolving Credit Agreement, dated as of February 25, 1998, as amended and restated as of February 23, 1999, among Burlington Resources Inc. and the several financial institutions listed therein. 10.2 Form of Second Amendment and Restatement of the Short-Term Revolving Credit Agreement, dated as of February 25, 1998, as amended and restated pursuant to the Amendment and Restatement Agreement dated as of February 23, 1999, and as further amended as of January 17, 2000, among Burlington Resources Inc. and the several financial institutions listed therein. -3- 10.3 Form of Second Amendment and Restatement of the Long-Term Revolving Credit Agreement, dated as of February 25, 1998 and amended and restated as of February 23, 1999, among Burlington Resources Inc. and the several financial institutions listed therein. 25 Form T-1 Statement of Eligibility of the Trustee under the Burlington Resources Finance Company Indenture under the Trust Indenture Act of 1939, as amended. -4- SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. BURLINGTON RESOURCES INC. Date: February 8, 2001 By: /s/ Daniel Hawk --------------------------------- Name: Daniel Hawk Title: -5- EXHIBIT INDEX Exhibit No. Description 1 Form of Standard Provisions of Underwriting Agreement among Burlington Resources Finance Company and the Underwriter(s) with respect to Debt Securities of Burlington Resources Finance Company. 4.1 Form of Indenture of Burlington Resources Finance Company. 4.2 Form of Guarantee Agreement of Burlington Resources Inc. with respect to Senior Debt Securities of Burlington Resources Finance Company. 4.3 Form of Senior Debt Security of Burlington Resources Finance Company with Form of Guarantee of Burlington Resources Inc. 5.1 Opinion of Cahill Gordon & Reindel. 5.2 Opinion of Stewart McKelvey Stirling Scales. 8.1 Opinion of White & Case LLP as to certain United States federal income tax matters. 8.2 Opinion of Bennett Jones LLP as to certain Canadian federal income tax matters. 10.1 Form of First Amendment and Restatement of the Short-Term Revolving Credit Agreement, dated as of February 25, 1998, as amended and restated as of February 23, 1999, among Burlington Resources Inc. and the several financial institutions listed therein. 10.2 Form of Second Amendment and Restatement of the Short-Term Revolving Credit Agreement, dated as of February 25, 1998, as amended and restated pursuant to the Amendment and Restatement Agreement dated as of February 23, 1999, and as further amended as of January 17, 2000, among Burlington Resources Inc. and the several financial institutions listed therein. 10.3 Form of Second Amendment and Restatement of the Long-Term Revolving Credit Agreement, dated as of -6- February 25, 1998 and amended and restated as of February 23, 1999, among Burlington Resources Inc. and the several financial institutions listed therein. 25 Form T-1 Statement of Eligibility of the Trustee under the Burlington Resources Finance Company Indenture under the Trust Indenture Act of 1939, as amended. EX-1 2 0002.txt UNDERWRITING AGREEMENT BURLINGTON RESOURCES FINANCE COMPANY UNDERWRITING AGREEMENT (FULLY AND UNCONDITIONALLY GUARANTEED BY BURLINGTON RESOURCES INC.) STANDARD PROVISIONS (DEBT SECURITIES) , 2001 From time to time, Burlington Resources Finance Company, a Nova Scotia unlimited liability company (the "Company"), may enter into one or more underwriting agreements that provide for the sale of designated securities to the several underwriters named therein. The standard provisions set forth herein may be incorporated by reference in any such underwriting agreement (an "Underwriting Agreement"). The Underwriting Agreement, including the provisions incorporated therein by reference, is herein referred to as "this Agreement". Terms defined in the Underwriting Agreement are used herein as therein defined. The Company has filed with the Securities and Exchange Commission (the "Commission") a registration statement, including a prospectus, relating to the Debt Securities and has filed with, or transmitted for filing to, or will file with the Commission a prospectus supplement (the "Prospectus Supplement") specifically relating to the Offered Securities pursuant to and in accordance with Rule 424 under the Securities Act of 1933, as amended (the "Securities Act"). The term "Registration Statement" means the registration statement, including the exhibits thereto, as amended to the date of this Agreement. The term "Basic Prospectus" means the prospectus as amended pursuant to and in accordance with Rule 424(b) of the Securities Act from time to time included in the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the Prospectus Supplement. The term "preliminary prospectus" means a preliminary prospectus supplement specifically relating to the Offered Securities, together with the Basic Prospectus. As used herein, the terms "Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall include in each case the documents, if any, incorporated by reference therein. The terms "supplement" and "amendment" or "amend" as used herein shall include all documents deemed to be incorporated by reference in the Prospectus that are filed subsequent to the 2 date of the Basic Prospectus by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"). 1. Representations and Warranties. The Company represents and warrants to each of the Underwriters that: (a) The Registration Statement has become effective; no stop order suspending the effectiveness of the Registration Statement is in effect, and no proceedings for such purpose are pending before or, to the best of the Company's knowledge, threatened by the Commission. (b)(i) Each document, if any, filed or to be filed pursuant to the Exchange Act and incorporated by reference in the Prospectus complied or will comply when so filed in all material respects with the Exchange Act and the applicable rules and regulations of the Commission thereunder; (ii) each part of the Registration Statement, when such part became effective, did not contain, and each such part, as amended or supplemented, if applicable, will not contain, any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Registration Statement and the Prospectus comply, and, as amended or supplemented, if applicable, will comply, in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder; and (iv) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 1(b) do not apply (A) to statements or omissions in the Registration Statement or the Prospectus based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly for use therein or (B) to that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), of the Trustee. (c) The Company is an unlimited liability company duly organized, validly existing and in good standing under the laws of Nova Scotia, Canada, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a 3 material adverse effect on the Company and its subsidiaries, taken as a whole. (d) Each subsidiary of the Company, if any, has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole. (e) This Agreement has been duly authorized, executed and delivered by the Company, as principal and not as agent. (f) The Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company, as principal and not as agent, and is a valid and binding agreement of the Company, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (g) The Offered Securities have been duly authorized by the Company, as principal and not as agent, and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (h) The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement, the Indenture and the Offered Securities will not contravene any provision of applicable law or the certificate of incorporation or by-laws (or other equivalent organizational document) of the Company or any agreement or other instrument binding upon the Company or any of its subsidiaries or affiliates that is material to the Company 4 and its subsidiaries, taken as a whole, or any judgment or decree of any governmental agency or court having jurisdiction over the Company or any subsidiary, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under this Agreement, the Indenture or the Offered Securities, except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Offered Securities. (i) There has not occurred any material adverse change in, or any adverse development which materially affects, the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Prospectus. (j) All descriptions in the Registration Statement, preliminary prospectus and Prospectus of statutes, regulations, legal or governmental proceedings, contracts and other documents are accurate in all material respects and fairly present in all material respects the information required to be shown; and there are no legal or governmental proceedings pending or, to the best of the Company's knowledge, threatened to which the Guarantor or any of its subsidiaries is a party or to which any of the properties of any of them is subject which are required to be described in the Registration Statement or the Prospectus or any amendments or supplements thereto and are not so described or any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required. (k) The Company is not, nor is it directly or indirectly controlled by or acting on behalf of any person which is, (i) an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated by the Commission thereunder or (ii) a "holding company" within the meaning of, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended, and the rules and regulations promulgated by the Commission thereunder. 2. Public Offering. The Company is advised by the Managers that the Underwriters propose to make a public offering of their respective portions of the Offered Securities as soon after this Agreement has been entered into as in the Managers' judgment is advisable. The terms of the public offering of the Offered Securities are set forth in the Prospectus. 5 3. Purchase and Delivery. Except as otherwise provided in this Section 3, payment for the Offered Securities shall be made by certified or official bank check or checks or wire transfer payable to the order of the Company in immediately available funds at the time and place set forth in the Underwriting Agreement, upon delivery to the Managers for the respective accounts of the several Underwriters of the Offered Securities, registered in such names and in such denominations as the Managers shall request in writing not less than two full business days prior to the date of delivery, with any transfer taxes payable in connection with the transfer of the Offered Securities to the Underwriters duly paid. 4. Conditions to Closing. The several obligations of the Underwriters hereunder are subject to the following conditions: (a) Subsequent to the execution and delivery of the Underwriting Agreement and prior to the Closing Date, (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Guarantor's securities by any "nationally recognized statistical rating organization", as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Guarantor and its subsidiaries, taken as a whole, from that set forth in the Prospectus that, in the judgment of the Managers, is material and adverse and that makes it, in the judgment of the Managers, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus. (b) The Managers shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of the Company, to the effect set forth in clause (a)(i) above and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date and that the Company has complied with all of the agreements and satisfied all 6 of the conditions on its part to be performed or satisfied on or before the Closing Date. The officer signing and delivering such certificate may rely upon the best of his knowledge as to proceedings threatened. (c) The Managers shall have received on the Closing Date (i) an opinion of Cahill Gordon & Reindel, special U.S. counsel to the Guarantor and Bennett Jones LLP, special Canadian counsel to the Company, addressing the matters set forth in paragraphs (i), (ii)(a), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi) (items (a), (b) and (c)), (xii)(b), (xiii) and (xiv), (b) of Exhibit A attached hereto, and (ii) an opinion of the Vice President and General Counsel of the Guarantor and the Company, addressing the matters set forth in paragraphs (ii)(b), (iii), (x), (xi) (item (d)), (xii)(a) and (xiv)(a) of Exhibit A. (d) The Managers shall have received on the Closing Date an opinion of Cravath, Swaine & Moore, special counsel for the Underwriters, dated the Closing Date, to the effect set forth in Exhibit B. (e) The Managers shall have received on each of the date hereof and the Closing Date a letter, dated such date, in form and substance reasonably satisfactory to the Managers, from PricewaterhouseCoopers LLP, independent accountants for the Company, containing statements and information of the type ordinarily included in accountants' "comfort letters" with respect to the financial statements and certain financial information contained in or incorporated by reference into the Prospectus. (f) The Managers shall have received (i) on the date of this Agreement, a guarantee in the form of Exhibit C (the "Underwriting Agreement Guarantee") executed by Burlington Resources Inc., a Delaware corporation, (the "Guarantor") and (ii) on the Closing Date, a certificate, dated the Closing Date and signed by an executive officer of the Guarantor, to the effect that the representations and warranties of the Guarantor contained in the Underwriting Agreement Guarantee are true and correct as of the Closing Date and that the Guarantor has complied with, and satisfied all of, the conditions to be performed or satisfied by it on or before the Closing Date. (g) The Managers shall have received on the Closing Date a guarantee agreement (the "Securities Guarantee"), in form and substance satisfactory to the Managers, under which the Guarantor agrees to 7 irrevocably and unconditionally guarantee all of the Company's obligations under the Indenture and in respect of the Offered Securities. 5. Covenants of the Company. In further consideration of the agreements of the Underwriters contained herein, the Company covenants as follows: (a) To furnish the Managers, without charge, a signed copy of the Registration Statement (including exhibits thereto) and for delivery to each other Underwriter a conformed copy of the Registration Statement (without exhibits thereto) and, during the period mentioned in paragraph (c) below, as many copies of the Prospectus, any documents incorporated by reference therein and any supplements and amendments thereto or to the Registration Statement as the Managers may reasonably request. (b) Before amending or supplementing the Registration Statement or the Prospectus with respect to the Offered Securities, to furnish to the Managers a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Managers reasonably object. (c) If, during such period after the first date of the public offering of the Offered Securities as in the opinion of counsel for the Underwriters the Prospectus is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters, and to the dealers (whose names and addresses the Managers will furnish to the Company) to which Offered Securities may have been sold by the Managers on behalf of the Underwriters and to any other dealer upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as so amended or supplemented, will comply with law. (d) To endeavor to qualify the Offered Securities for offer and sale under the securities or Blue Sky 8 laws of such jurisdictions as the Managers shall reasonably request and to pay all expenses (including fees and disbursements of counsel) in connection with such qualification and in connection with (i) the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions as the Managers may designate and (ii) any review of the offering of the Offered Securities by the National Association of Securities Dealers, Inc. (e) To make generally available to the Company's security holders and to the Managers as soon as practicable an earnings statement of the Guarantor covering a twelve month period beginning on the first day of the first full fiscal quarter after the date of this Agreement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (f) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date, not to offer, sell, contract to sell or otherwise dispose of any debt securities of the Company substantially similar to the Offered Securities (other than the Offered Securities) without the prior written consent of the Managers. 6. Indemnification and Contribution. The Company agrees to indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred by any Underwriter or any such controlling person in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, any preliminary prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through the Managers expressly for use therein. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its 9 directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company by such Underwriter in writing through the Managers expressly for use in the Registration Statement, any preliminary prospectus, the Prospectus or any amendments or supplements thereto. In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to either of the two preceding paragraphs, such person (the "indemnified party") shall promptly notify the person against whom such indemnity may be sought (the "indemnifying party") in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by the Managers, in the case of parties indemnified pursuant to the second preceding paragraph, and by the Company, in the case of parties indemnified pursuant to the first preceding paragraph. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of 10 counsel as contemplated by the third sentence of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding. If the indemnification provided for in the first or second paragraph in this Section 6 is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabil ities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Offered Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of such Offered Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus Supplement, bear to the aggregate public offering price of the Offered Securities. The relative fault of the Company on the one hand and of the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties' relative intent, 11 knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters' respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective principal amounts of Offered Securities purchased by each of such Underwriters and not joint. The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity. The indemnity and contribution provisions contained in this Section 6 and the representations and warranties of the Company contained herein shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its directors or officers or any person controlling the Company and (iii) acceptance of and payment for any of the Offered Securities. 7. Termination. This Agreement shall be subject to termination, by notice given by the Managers to the Company, if (a) after the execution and delivery of the Underwriting Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on or by, as the case may be, any of the New York Stock Exchange, the American Stock Exchange or the National 12 Association of Securities Dealers, Inc., (ii) trading of any securities of the Guarantor shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities, or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis that, in the judgment of the Managers, is material and adverse and (b) in the case of any of the events specified in clauses (a) (i) through (iv), such event, singly or together with any other such event, makes it, in the judgment of the Managers, impracticable to market the Offered Securities on the terms and in the manner contemplated in the Prospectus. 8. Defaulting Underwriters. [Applicable only if there is more than one Underwriter of the Offered Securities.] If, on the Closing Date, any one or more of the Underwriters shall fail or refuse to purchase Offered Securities of any series that it has or they have agreed to purchase hereunder on such date, and the aggregate amount of Offered Securities of such series which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate amount of the Offered Securities of such series to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the amount of Offered Securities of such series set forth opposite their respective names above bears to the aggregate amount of Offered Securities of such series set forth opposite the names of all such nondefaulting Underwriters, or in such other proportions as the Managers may specify, to purchase the Offered Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the amount of Offered Securities of any series that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 8 by an amount in excess of one-ninth of such amount of Offered Securities without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Offered Securities of any series and the aggregate amount of Offered Securities with respect to which such default occurs is more than one-tenth of the aggregate amount of Offered Securities of such series to be purchased on such date, and arrangements satisfactory to the Managers and the Company for the purchase of such Offered Securities are not made within 36 hours after such default, this Agreement shall terminate with respect to such series of Offered Securities without liability on the part of any non-defaulting Underwriter or the Company. In any such case either the Manager or the Company shall have the right to postpone the Closing Date but in no event for longer than seven days, in order that the required changes, if any, in 13 the Registration Statement and in the Prospectus or in any other documents or arrangements may be effected. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement. If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Under writers in connection with this Agreement or the offering of the Offered Securities. 9. Miscellaneous. The Underwriting Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. Solely for purposes of enforcing this Agreement, the Company hereby consents to personal jurisdiction, service of process and venue in any court in which any claim or proceeding that is subject to this Agreement is brought against it. Any right to trial by jury with respect to any claim or proceeding related to or arising out of this Agreement or any transaction or conduct in connection therewith is hereby waived by the Company. The agreements contained in this paragraph shall remain in full force and effect notwithstanding the termination of this Agreement. 10. Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement. 11. Notices. All references herein and in the Underwriting Agreement to the Managers when made in connection with any notice to or communication by or with such Managers shall, if there is more than one manager, be deemed to be to the Lead Manager, as designated in the Underwriting Agreement, and all notices shall be given to such Lead Manager at the address set forth therein. 14 Exhibit A Opinion of Counsel for the Guarantor and the Company The opinion of counsel for the Guarantor and the Company to be delivered pursuant to Section 4(c) of the Underwriting Agreement shall be to the effect that: (i) the Guarantor is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware; (ii) the Guarantor (a) has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and (b) is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole; (iii) each domestic material subsidiary of the Guarantor has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Guarantor and its subsidiaries, taken as a whole; (iv) the Underwriting Agreement has been duly authorized, executed and delivered by the Company and the Underwriting Agreement Guarantee has been duly authorized, executed and delivered by the Guarantor; (v) the Indenture has been duly qualified under the Trust Indenture Act and has been duly authorized, executed and delivered by the Company and is a valid 2 and binding agreement of the Company, enforceable in accordance with its terms except that (a) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws now or hereafter in effect relating to or affecting creditors' rights or remedies generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or equity); (vi) the Offered Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will be entitled to the benefits of the Indenture and will be valid and binding obligations of the Company, in each case enforceable in accordance with their respective terms except that (a) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws now or hereafter in effect relating to or affecting creditors' rights or remedies generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or equity); (vii) the Securities Guarantee has been duly authorized, executed and delivered by the Guarantor and is a valid and binding agreement of the Guarantor, enforceable in accordance with its terms except that (a) the enforceability thereof may be subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance or other similar laws now or hereafter in effect relating to or affecting creditors' rights or remedies generally and (b) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceedings therefor may be brought (regardless of whether enforcement is sought in a proceeding at law or equity); (viii) the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the 3 Indenture and the Offered Securities will not contravene any provisions of the certificate of incorporation or by-laws of the Company; (ix) the execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, the Underwriting Agreement Guarantee and the Securities Guarantee will not contravene any provisions of the certificate of incorporation or by-laws of the Guarantor; (x) to the knowledge of such counsel, the execution and delivery by the Company of, and the performance by the Company of its obligations under, the Underwriting Agreement, the Indenture and the Offered Securities and the execution and delivery by the Guarantor of, and the performance by the Guarantor of its obligations under, the Underwriting Agreement Guarantee and the Securities Guarantee will not contravene any agreement or other instrument binding upon the Guarantor, the Company or any other subsidiary of the Guarantor that is material to the Guarantor and its subsidiaries, taken as a whole, or any judgment, order or decree of any governmental body, agency or court of the United States, Canada or any jurisdiction therein or any other jurisdiction having jurisdiction over the Guarantor or any of its subsidiaries, or any provision of applicable law (other than state securities law) and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by the Company of its obligations under the Underwriting Agreement, the Indenture or the Offered Securities except such as may be required by the securities or Blue Sky laws of the various states in connection with the offer and sale of the Offered Securities or by the Guarantor of its obligations under the Underwriting Agreement Guarantee or the Securities Guarantee; (xi) the statements (a) in the Prospectus Supplement under the captions "Certain Terms of the Debt Securities" and "Underwriting", (b) in the Basic Prospectus under the captions "Description of Debt Securities" and "Plan of Distribution", (c) in the Registration Statement under Item 15 and (d) in "Item 3 - Legal Proceedings" of the Guarantor's most recent annual report on Form 10-K incorporated by reference in the Prospectus, in each case insofar as 4 such documents constitute summaries of the legal matters, documents or legal proceedings referred to therein, fairly present the information called for with respect to such legal matters, documents and proceedings, and fairly summarize the matters referred to therein; (xii) such counsel does not know of (a) any legal or governmental proceedings pending or threatened to which the Guarantor or any of its subsidiaries is a party or to which any of the properties of the Guarantor or any of its subsidiaries is subject that are required to be described in the Registration Statement or the Prospectus and are not so described or of (b) any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required; (xiii) neither the Company nor the Guarantor are, nor are either of them directly or indirectly controlled by or acting on behalf of any person which is, (i) an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated by the Commission thereunder or (ii) a "holding company" within the meaning of, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended, and the rules and regulations promulgated by the Commission thereunder; and (xiv) (a) such counsel is of the opinion that each document, if any, filed pursuant to the Exchange Act and incorporated by reference in the Prospectus (except for financial statements and schedules and other financial or statistical information included therein as to which such counsel need not express any opinion) was appropriately responsive when so filed in all material respects to the requirements of the Exchange Act and the applicable rules and regulations of the Commission thereunder and (b) such counsel is of the opinion that the Registration Statement and Prospectus (except for financial statements and schedules and other financial or statistical information included therein as to which such counsel need not express any opinion) are appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. 5 With respect to paragraph (x) above, each of Cahill Gordon & Reindel, special U.S. counsel to the Company and Guarantor, and Bennett Jones LLP, special Canadian counsel to the Company and Guarantor may each (i) limit the agreements and instruments referred to in paragraph (x) of this section to only those agreements and instruments that have been filed pursuant to and in accordance with the Exchange Act and (ii) rely on one or more certificates of the Vice President and General Counsel of the Guarantor and Company for their opinion indicating a lack of conflicts as described in paragraph (x). With respect to paragraph (xiv) above, such counsel may state that its opinion and belief are based upon its participation in the preparation of the Registration Statement and Prospectus and any amendments or supplements thereto and documents incorporated therein by reference and review and discussion of the contents thereof, but are without independent check or verification, except as specified. The 10b-5 letter shall include the following: We have participated in conferences with officers and other representatives of the Company and the Guarantor, representatives of the independent public accountants for the Company and the Guarantor and your representatives and your counsel, at which the contents of the Registration Statement and the Prospectus and related matters were discussed, and although we are not passing upon and do not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus, we advise you that on the basis of the foregoing (relying as to materiality to a large extent upon the opinions of officers and other representatives of the Company and the Guarantor), nothing has come to our attention which leads us to believe that the Registration Statement at the time it became effective contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of the date of such Prospectus, and at all times up to and including the date hereof, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that we have not been asked to, and do not, comment on the financial statements and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus or on any of the information contained in the Statement of Eligibility on Form T-1 of the Trustee). Exhibit B Opinion of Cravath, Swaine & Moore, Counsel for the Underwriters The opinion of Cravath, Swaine & Moore, counsel for the Underwriters, to be delivered pursuant to Section 4(d) of the Underwriting Agreement shall be to the effect that: (i) the Underwriting Agreement has been duly authorized, executed and delivered by the Company; (ii) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act of 1939, as amended, and constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors' rights generally from time to time in effect and, as to the enforceability of obligations, to general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; (iii) the Offered Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters in accordance with the terms of the Underwriting Agreement, will constitute legal, valid and binding obligations of the Company, entitled to the benefits of the Indenture, and conform to the description thereof contained in the Prospectus; (iv) the Registration Statement became effective under the Securities Act, and to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or are pending or contemplated under the Securities Act; and (v) such counsel (1) believes that (except for financial statements and related schedules and other 2 financial data as to which such counsel need not express any belief and except for that part of the Registration Statement that constitutes the Form T-1 heretofore referred to) each part of the Registration Statement, when such part became effective, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (2) is of the opinion that the Registration Statement and Prospectus (except for financial statements and related schedules and other financial data included therein as to which such counsel need not express any opinion) comply as to form in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder and (3) believes that (except for financial statements and related schedules and other financial data as to which such counsel need not express any belief) the Prospectus as of the date such opinion is delivered does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. With respect to clause (v) above, such counsel may state that their opinion and belief are based upon their participation in the preparation of the Registration Statement and the Prospectus and any amendments or supplements thereto (other than the documents incorporated by reference) and upon review and discussion of the contents thereof (including documents incorporated by reference) but are without independent check or verification, except as specified. Such counsel may rely, to the extent its opinions are based upon matters governed by the laws of other jurisdictions, upon the opinion of other counsel admitted to the bar in such jurisdictions. Exhibit C [FORM OF] UNDERWRITING AGREEMENT GUARANTEE BY BURLINGTON RESOURCES INC. Burlington Resources Inc., a Delaware corporation (the "Guarantor"), hereby guarantees, as a primary obligor and not merely as surety, the due and punctual payment and performance by Burlington Resources Finance Company, a Nova Scotia unlimited liability company (the "Company"), of its obligations under the Underwriting Agreement dated as of [ ] (the "Underwriting Agreement"), between the several underwriters named therein and the Company (all such obligations being referred as the "Obligations"). Capitalized terms used but not defined herein are used with the meanings assigned to them in the Underwriting Agreement. This Underwriting Agreement Guarantee constitutes a guarantee of payment when due and not of collection. Guarantor guarantees that the Obligations will be paid when due strictly in accordance with their terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of The Underwriters with respect thereto and regardless of any other circumstance which might otherwise constitute a defense available to, or a discharge of, Guarantor. This Underwriting Agreement Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by The Underwriters upon the insolvency, bankruptcy or reorganization of the Company or otherwise, all as though such payment had not been made. Guarantor waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations and this Underwriting Agreement Guarantee and any requirement that The Underwriters exercise any right or take any action against the Company. Until the irrevocable payment in full in cash of all of the Obligations, Guarantor irrevocably waives any claim or other rights which it may now or hereafter acquire against The Underwriters that arise from the existence, payment, performance or enforcement of Guarantor's obligations under this Underwriting Agreement Guarantee, 2 including any right of subrogation, reimbursement, exoneration, or indemnification and any right to participate in any claim or remedy of The Underwriters against the Company, whether or not such claim, remedy or right arises in equity, or under contract, statute or common law. If any amount shall be paid to Guarantor in violation of the preceding sentence and the Obligations shall not have been paid in cash in full, such amount shall be deemed to have been paid to Guarantor for the benefit of, and held in trust for The Underwriters, and shall promptly be credited and applied against the Obligations. Guarantor represents and warrants to each of the Underwriters that: (a) Guarantor is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware, has the corporate power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Guarantor and its subsidiaries, taken as a whole. (b) Burlington Resource Finance Company and each material subsidiary, of Guarantor has been duly organized, is validly existing in good standing under the laws of the jurisdiction of its organization, has the power and authority to own its property and to conduct its business as described in the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on Guarantor and its subsidiaries, taken as a whole. (c) This Underwriting Agreement Guarantee and the Securities Guarantee have been duly authorized, executed and delivered by Guarantor. (d) The execution and delivery by Guarantor of, and the performance by Guarantor of its obligations under, this Underwriting Agreement Guarantee and the Securities Guarantee will not contravene any provision of applicable law or the certificate of incorporation or by-laws of Guarantor or any agreement or other instrument binding upon Guarantor or any of its subsidiaries or affiliates that is material to 3 Guarantor and its subsidiaries, taken as a whole, or any judgment or decree of any governmental agency or court having jurisdiction over Guarantor or any subsidiary, and no consent, approval, authorization or order of or qualification with any governmental body or agency is required for the performance by Guarantor of its obligations under this Underwriting Agreement Guarantee or the Securities Guarantee. (e) There has not occurred any material adverse change in, or any adverse development which materially affects, the condition, financial or otherwise, or in the earnings, business or operations of Guarantor and its subsidiaries, taken as a whole, from that set forth in the Prospectus. (f) The Securities Guarantee has been duly authorized, executed and delivered by the Guarantor and is a valid and binding agreement of the Guarantor, enforceable in accordance with its terms except as (i) the enforceability thereof may be limited by bankruptcy, insolvency or similar laws affecting creditors' rights generally and (ii) rights of acceleration and the availability of equitable remedies may be limited by equitable principles of general applicability. (g) The Guarantor is not, nor is it directly or indirectly controlled by or acting on behalf of any person which is, (i) an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated by the Commission thereunder or (ii) a "holding company" within the meaning of, or subject to regulation under, the Public Utility Holding Company Act of 1935, as amended, and the rules and regulations promulgated by the Commission thereunder. In further consideration of the agreements of the Underwriters contained in the Underwriting Agreement, the Guarantor covenants as follows: (a) To make generally available to the Guarantor's security holders and to the Managers as soon as practicable an earnings statement covering a twelve month period beginning on the first day of the first full fiscal quarter after the date of this Agreement, which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder. (b) During the period beginning on the date of the Underwriting Agreement and continuing to and including the Closing Date, not to offer, sell, 4 contract to sell or otherwise dispose of any debt securities of the Guarantor substantially similar to the Offered Securities (other than the Offered Securities) without the prior written consent of the Managers. This Underwriting Agreement Guarantee may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto were upon the same instrument. This Underwriting Agreement Guarantee shall be governed by and construed in accordance with the internal laws of the State of New York. This Underwriting Agreement Guarantee sets forth the entire agreement between the parties with respect to the matters addressed herein and supersedes all prior communications, written or oral, with respect hereto. Guarantor waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Underwriting Agreement Guarantee or the transactions contemplated hereby or the actions of Guarantor and The Underwriters in the negotiation, performance or enforcement hereof. BURLINGTON RESOURCES INC., by ------------------------------------- Name: Title: EX-4.1 3 0003.txt INDENTURE ================================================================================ BURLINGTON RESOURCES FINANCE COMPANY, as Issuer and CITIBANK, N.A., as Trustee INDENTURE Dated as of February 12, 2001 DEBT SECURITIES ================================================================================ BURLINGTON RESOURCES FINANCE COMPANY CROSS-REFERENCE SHEET This Cross-Reference Sheet shows the location in this Indenture of the provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust Indenture Act of 1939, as amended. This Cross-Reference Sheet shall not, for any purpose, be deemed to be a part of this Indenture. Trust Indenture Indenture Act Section Section ss. 310(a)(1),(2).................................... 6.09 (a)(3)(4)...................................... Not Applicable (a)(5)......................................... 6.09 (b)............................................ 6.08, 6.10 (c)............................................ Not Applicable ss. 311(a), (b)...................................... 6.13 (c)............................................ Not Applicable ss. 312(a) .......................................... 7.01, 7.02(a) (b)............................................ 7.02(b) (c)............................................ 7.02(c) ss. 313(a)(1)-(4),(6)-(8)............................ 7.03(a) (a)(5)......................................... Not Applicable (b)(1)......................................... Not Applicable (b)(2)......................................... 7.03(b) (c),(d)........................................ 7.03 ss. 314(a) .......................................... 7.04 (b)............................................ Not Applicable (c)(1),(2)..................................... 1.03 (c)(3)......................................... Not Applicable (d)............................................ Not Applicable (e)............................................ 1.03 (f)............................................ Not Applicable ss. 315(a) .......................................... 6.01(a) (b)............................................ 6.02 (c)............................................ 6.01(b) (d)............................................ 6.01(c) (d)(1)......................................... 6.01(a) (d)(2)......................................... 6.01(c)(2) (d)(3)......................................... 6.01(c)(3) (e)............................................ 5.14 ss. 316(a) .......................................... 1.01 (a)(1)(A)...................................... 5.12 (a)(1)(B)...................................... 5.13 (a)(2)......................................... Not Applicable (b)............................................ 5.08 ss. 317(a)(1)........................................ 5.03 (a)(2)......................................... 5.04 (b)............................................ 10.03 ss. 318(a) .......................................... 1.08 CONTENTS Page ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions.............................................1 SECTION 1.02. Incorporation by Reference of Trust Indenture Act.......7 SECTION 1.03. Compliance Certificates and Opinions....................7 SECTION 1.04. Form of Documents Delivered to Trustee..................8 SECTION 1.05. Acts of Holders.........................................8 SECTION 1.06. Notices, Etc., to Trustee and Company...................9 SECTION 1.07. Notices to Holders; Waiver..............................9 SECTION 1.08. Conflict With Trust Indenture Act......................10 SECTION 1.09. Effect of Headings and Table of Contents...............10 SECTION 1.10. Successors and Assigns.................................10 SECTION 1.11. Separability Clause....................................10 SECTION 1.12. Benefits of Indenture..................................10 SECTION 1.13. Governing Law..........................................10 SECTION 1.14. Legal Holidays.........................................11 SECTION 1.15. Agent for Service and Submission to Jurisdiction.......11 ARTICLE TWO FORM OF SECURITIES SECTION 2.01. Forms Generally........................................12 SECTION 2.02. Form of Trustee's Certificate of Authentication........12 ARTICLE THREE THE SECURITIES SECTION 3.01. Title and Terms........................................13 SECTION 3.02. Denominations..........................................15 SECTION 3.03. Execution, Authentication, Delivery and Dating.........15 SECTION 3.04. Temporary Securities...................................16 SECTION 3.05. Registration, Registration of Transfer and Exchange....16 SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.......18 SECTION 3.07. Payment of Interest; Interest Rights Preserved.........18 SECTION 3.08. Persons Deemed Owners..................................19 SECTION 3.09. Cancellation...........................................20 SECTION 3.10. Computation of Interest................................20 SECTION 3.11. Interest Act (Canada)..................................20 -i- Page SECTION 3.12. CUSIP Numbers..........................................20 SECTION 3.13. Book-Entry Provisions for Global Security..............20 ARTICLE FOUR SATISFACTION AND DISCHARGE: UNCLAIMED MONEYS SECTION 4.01. Satisfaction and Discharge of Indenture................22 SECTION 4.02. Deposited Moneys To Be Held in Trust by Trustee........24 SECTION 4.03. Paying Agent To Repay Moneys Held......................24 SECTION 4.04. Return of Unclaimed Moneys.............................25 SECTION 4.05. Reinstatement..........................................25 ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default......................................25 SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.....26 SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee...........................................28 SECTION 5.04. Trustee May File Proofs of Claim.......................28 SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities...........................................29 SECTION 5.06. Application of Money Collected.........................29 SECTION 5.07. Limitation on Suits....................................30 SECTION 5.08. Unconditional Right of Holders To Receive Principal and Interest.........................................30 SECTION 5.09. Restoration of Rights and Remedies.....................30 SECTION 5.10. Rights and Remedies Cumulative.........................31 SECTION 5.11. Delay or Omission Not Waiver...........................31 SECTION 5.12. Control by Holders.....................................31 SECTION 5.13. Waiver of Past Defaults................................31 SECTION 5.14. Undertaking for Costs..................................32 ARTICLE SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities....................32 SECTION 6.02. Notice of Defaults.....................................33 SECTION 6.03. Certain Rights of Trustee..............................34 SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.35 SECTION 6.05. May Hold Securities....................................35 SECTION 6.06. Money Held in Trust....................................35 SECTION 6.07. Compensation and Reimbursement.........................35 SECTION 6.08. Disqualification; Conflicting Interests................36 SECTION 6.09. Corporate Trustee Required; Eligibility................36 SECTION 6.10. Resignation and Removal; Appointment of Successor......37 SECTION 6.11. Acceptance of Appointment by Successor.................38 -ii- Page SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business..........................................39 SECTION 6.13. Preferential Collection of Claims Against Company......39 SECTION 6.14. Trustee's Application for Instructions from the Company..............................................39 ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders..............................................40 SECTION 7.02. Preservation of Information; Communications to Holders.40 SECTION 7.03. Reports by Trustee.....................................41 SECTION 7.04. Reports by Company.....................................41 ARTICLE EIGHT CONSOLIDATION, MERGER, AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms...41 SECTION 8.02. Successor Corporation Substituted......................42 SECTION 8.03. Assignment by the Company to the Guarantor or its other Subsidiaries...................................42 ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders.....43 SECTION 9.02. Supplemental Indentures With Consent of Holders........44 SECTION 9.03. Execution of Supplemental Indentures...................45 SECTION 9.04. Effect of Supplemental Indentures......................45 SECTION 9.05. Conformity With Trust Indenture Act....................45 SECTION 9.06. Reference in Securities to Supplemental Indentures.....45 ARTICLE TEN COVENANTS SECTION 10.01. Payment of Principal and Interest......................45 SECTION 10.02. Maintenance of Office or Agency........................45 SECTION 10.03. Money for Security Payments To Be Held in Trust........46 SECTION 10.04. Limitation on Liens....................................47 SECTION 10.05. Waiver of Certain Covenants............................49 SECTION 10.06. Withholding and Reporting Obligations of Paying Agent..50 -iii- Page ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article...............................50 SECTION 11.02. Election to Redeem; Notice To Trustee..................50 SECTION 11.03. Selection by Trustee of Securities To Be Redeemed......50 SECTION 11.04. Notice of Redemption...................................51 SECTION 11.05. Deposit of Redemption Price............................51 SECTION 11.06. Securities Payable on Redemption Date..................52 SECTION 11.07. Securities Redeemed in Part............................52 EXHIBIT A Form of Guarantee Agreement -iv- INDENTURE INDENTURE, dated as of February 12, 2001, between BURLINGTON RESOURCES FINANCE COMPANY, an unlimited liability company organized under the laws of Nova Scotia, Canada whose principal place of business is c/o Burlington Resources Canada Energy Ltd., Suite 3700, 250-6th Avenue, S.W., Calgary, Alberta T2P 3H7, Canada (herein called the "Company"), and CITIBANK, N.A., a national banking association duly incorporated and existing under the laws of the United States of America, as Trustee (herein called the "Trustee"). RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness (herein called the "Securities") to be issued in one or more series as provided in this Indenture. All things necessary to make this Indenture a valid agreement of the Company and the Trustee, in accordance with its terms, have been done. NOW, THEREFORE, THIS INDENTURE WITNESSETH: That in order to declare the terms and conditions upon which the securities are made, executed, authenticated, issued and delivered, the Company and the Trustee covenant and agree with each other, for the equal and proportionate benefit of all Holders (as defined below) of the Securities or of any series thereof, as follows: ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions For all purposes of this Indenture and any indenture supplemental hereto, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article One have the meanings assigned to them in this Article One and include the plural as well as the singular; (2) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to -2- any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this Indenture; and (3) the words "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. Certain terms, used principally in Article Six, are defined in Section 1.02. "Act" when used with respect to any Holder has the meaning specified in Section 1.05. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing. "Agent Members" has the meaning specified in Section 3.13. "Authorized Newspaper" means a newspaper of general circulation in the New York, New York area, printed in the English language and customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays. Whenever successive weekly publications in an Authorized Newspaper are required hereunder they may be made (unless otherwise expressly provided herein) on the same or different days of the week and in the same or in different Authorized Newspapers. "Board of Directors" means either the board of directors of the Company or the Guarantor, as the case may be, or any duly authorized committee of that board. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as the case may be, to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. "Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close. "Capital Stock", as applied to the stock of any Person, means the capital stock of every class, whether now or hereafter authorized, regardless of whether such capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such Person. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or, if at any time after the execution -3- of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time. "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" or "Company Order" means a written request or order signed in the name of the Company by its Chairman of the Board, its President, a Vice Chairman or a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee. "Consolidated Net Tangible Assets" means the aggregate amount of assets of the Guarantor and its subsidiaries (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding any 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 (ii) all goodwill, trade names, trademarks, patents, organization expenses and other like intangibles of the Guarantor and its Subsidiaries, all as set forth on the most recent balance sheet of the Guarantor and its Subsidiaries and computed in accordance with generally accepted accounting principles. "Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office is, at the date as of which this Indenture in dated, located at 111 Wall Street, New York, New York 10005, Attn: Citibank Agency and Trust Services. "Corporation" includes corporations, associations, companies and business trusts. "Debt" means indebtedness for money borrowed. "Defaulted Interest" has the meaning specified in Section 3.07. "Depository" has the meaning specified in Section 3.13. "Event of Default" has the meaning specified in Section 5.01. "Global Security" has the meaning specified in Section 3.01. "Guarantee" means the guarantee by the Guarantor of the Securities pursuant to the Guarantee Agreement. "Guarantee Agreement" means the guarantee agreement, a form of which is attached hereto as Exhibit A. "Guarantor" means Burlington Resources Inc., a Delaware corporation. -4- "Guarantor Subsidiary" means a "Subsidiary" as defined in the Guarantee Agreement and not this Indenture. "Holder" means a Person in whose name a Security is registered in the Securities Register. "Indenture" means 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. "Interest Payment Date" means the Stated Maturity of an installment of interest on the Securities. "Lien" has the meaning specified in Section 10.04. "Maturity," when used with respect to one of the Securities, means the date on which the principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration or otherwise. "Officers' Certificate" means a certificate signed by the chairman of the Board, the President, a Vice Chairman or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company or the Guarantor, as the case may be, and delivered to the Trustee, which shall to the extent applicable contain the statements required by Section 1.03. "Opinion of Counsel" means a written opinion of counsel, who may be counsel for the Company, or the Guarantor, as the case may be, which shall to the extent applicable contain the statements required by Section 1.03. "Outstanding," when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except: (i) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Securities, or portions thereof, for whose payment money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; and (iii) Securities in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be disregarded -5- and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person authorized by the Company to pay the principal of or interest on any Securities on behalf of the Company. "Person" means any individual, corporation, partnership, joint venture, association, joint stock company, limited liability company, unlimited liability company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Predecessor Security" of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security. "Principal Property" means any oil, gas or mineral producing property, or any refining, processing, smelting or manufacturing facility, of the Company or any Restricted Subsidiary located in the United States of America, other than (i) property employed in transportation, distribution or marketing, (ii) information and electronic data processing equipment, (iii) any refinery, preparation plant, concentrator, smelter, mill or handling, processing or manufacturing facility in which the interests held by the Company or by one or more Restricted Subsidiaries or both and by others and the aggregate interest held by the Company and all Restricted Subsidiaries does not equal or exceed 50%, (iv) any property which in the opinion of the Board of Directors of the Company is not materially important to the total business conducted by the Company and its Subsidiaries as an entirety or (v) any property or a portion of a particular property which in the opinion of the Board of Directors of the Company is not materially important to the use or operation of such property. "Record Date" for the interest payable on any Interest Payment Date means the date specified pursuant to Section 3.01. "Redemption Date," when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price," when used with respect to any Security to be redeemed, means the price at which it is to be redeemed by or pursuant to this Indenture. "Responsible Officer," when used with respect to the Trustee, means any vice president, any senior trust officer, any trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, -6- with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. "Restricted Subsidiary" means a Subsidiary of the Company (i) substantially all the property of which is located, or substantially all the business of which is carried on, within the United States of America, (ii) which owns a Principal Property and (iii) which has Stockholders' Equity exceeding 2% of Consolidated Net Tangible Assets of the Guarantor. "Securities" has the meaning stated in the first recital of this Indenture and more particularly means any securities authenticated and delivered under this Indenture. "Securities Register" and "Securities Registrar" have the respective meanings specified in Section 3.05. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07. "Stated Maturity," when used with respect to any Security or any installment of interest thereon, means 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. "Stockholders' Equity" means, with respect to any Person, stockholders' equity, as computed in accordance with generally accepted accounting principles. "Subsidiary" means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. "Trustee" means the person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean such successor Trustee. "Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this instrument was executed, except as provided in Section 9.05. "Vice President," when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title "vice president." "Voting Stock" means stock which ordinarily has voting power for the election of a majority of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency. -7- SECTION 1.02. Incorporation by Reference of Trust Indenture Act Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings: "Bankruptcy Act" means the Bankruptcy Act (Title 11 of the United States Code). "indenture securities" means the Securities. "indenture security holder" means a Holder. "indenture to be qualified" means this Indenture. "indenture trustee" or "institutional trustee" means the Trustee. "obligor" on the Securities means the Company or any other obligor on the Securities. All the other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule have the meanings assigned to them thereby. SECTION 1.03. Compliance Certificates and Opinions Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee 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, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether such covenant or condition has been complied with; and -8- (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. SECTION 1.04. Form of Documents Delivered to Trustee In any case where several matters under the Indenture or the Guarantee Agreement are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company or the Guarantor in connection with the Indenture or the Guarantee Agreement may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. SECTION 1.05. Acts of Holders (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture or the Guarantee Agreement to be given or taken by Holders of the outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Company, and where it is expressly required by the Guarantee Agreement, to the Guarantor. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holder or Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and the Guarantee Agreement and (subject to Section 6.01) conclusive in favor of the Trustee and the Company or the Guarantor, as the case may be, if made in the manner provided in this Section 1.05. The Company may set a record date for purposes of determining the identity of Holders entitled to vote or consent to any action by vote or consent authorized or permitted under this Indenture or the Guarantee Agreement, which record date shall be not earlier than 30 days prior to the first solicitation of such vote or consent. If a -9- record date is fixed, those persons who were Holders of Securities at such record date (or their duly designated proxies), and only those persons, shall be entitled to take such action by vote or consent or to revoke any vote or consent previously given, whether or not such persons continue to be Holders after such record date. No such vote or consent shall be valid or effective for more than 120 days after such record date. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of Securities shall be proved by the Securities Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security. SECTION 1.06. Notices, Etc., to Trustee and Company Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with: (a) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Citibank Agency and Trust Services or (b) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Company, Attention: Vice President and Assistant Treasurer. SECTION 1.07. Notices to Holders; Waiver Where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder affected by such event, at his address as it appears in the Securities Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving -10- of such notice. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In case by reason of the suspension of regular mail service, or by reason of any other cause, it shall be impracticable to give notice as required by this Indenture, then such method of notification as shall be made with the approval of the Trustee shall constitute a sufficient notice. SECTION 1.08. Conflict With Trust Indenture Act If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be. SECTION 1.09. Effect of Headings and Table of Contents The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. SECTION 1.10. Successors and Assigns All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. SECTION 1.11. Separability Clause In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 1.12. Benefits of Indenture Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture. SECTION 1.13. Governing Law This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York. -11- SECTION 1.14. Legal Holidays In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest on or principal (and premium, if any) of such Security need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, Redemption Date or at the Stated Maturity; and if so made, no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. SECTION 1.15. Agent for Service and Submission to Jurisdiction The Company (i) acknowledges that it has, by separate written instrument, designated and appointed CT Corporation System (the "Process Agent"), 111 Eight Avenue, New York, New York 10011, United States, as its authorized agent upon which process may be served in any suit, action or proceeding arising out of or relating to the Securities or this Indenture that may be instituted in any Federal or state court in the State of New York, The City of New York, the Borough of Manhattan, or brought under Federal or state securities laws or brought by the Trustee (whether in its individual capacity or in its capacity as Trustee hereunder), and acknowledges that the Process Agent has accepted such designation, (ii) submits to the jurisdiction of any such court in any such suit, action or proceeding and (iii) agrees that service of process upon the Process Agent and written notice of said service to it (mailed or delivered to the Company at its principal office as specified in the first paragraph of this Indenture), shall be deemed in every respect effective service of process upon it in any such suit or proceeding. The Company further agrees to take any and all action, including the execution and filing of any and all such documents and instruments as may be necessary to continue such designation and appointment of the Process Agent in full force and effect so long as this Agreement shall be in full force and effect; provided that the Company may (and shall, to the extent the Process Agent ceases to be able to be served on the basis contemplated herein) by written notice to the Trustee, designate such additional or alternative agents for service of process under this Section 1.15 that (i) maintains an office located in the Borough of Manhattan, The City of New York in the State of New York, (ii) are either (x) counsel for the Company or (y) a corporate service company which acts as agent for service of process for other Persons in the ordinary course of its business and (iii) agrees to act as agent for service of process in accordance with this Section 1.15. Such notice shall identify the name of such agent for process and the address of such agent for process in the Borough of Manhattan, The City of New York, State of New York. Notwithstanding the foregoing, there shall, at all times, be at least one agent for service of process for the Company appointed and acting in accordance with this Section 1.15. -12- ARTICLE TWO FORM OF SECURITIES SECTION 2.01. Forms Generally The Securities of each series and the Trustee's certificates of authentication shall be in substantially such form (not inconsistent with this Indenture) as shall be established by or pursuant to one or more Board Resolutions and set forth in such Board Resolutions, or, to the extent established pursuant to, rather than set forth in, such Board Resolutions, an Officers' Certificate detailing such establishment, or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification and such legends or endorsements placed thereon, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as determined by the Officers executing such Securities, as evidenced by such execution. If the form or forms of Securities of any series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities. The definitive Securities shall be printed, lithographed or engraved 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 on which the Securities may be listed, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities. SECTION 2.02. Form of Trustee's Certificate of Authentication The Trustee's certificate of authentication on all Securities shall be in substantially the following form: This is one of the securities of the series designated herein and issued pursuant to the within-mentioned Indenture. CITIBANK, N.A. as Trustee By: ----------------------------------------- Authorized Signatory Dated: -13- ARTICLE THREE THE SECURITIES SECTION 3.01. Title and Terms The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is not limited. The Securities may be issued in one or more series. There shall be established in or pursuant to Board Resolutions and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable: (1) the title of the Securities of the series (which shall distinguish the Securities of the series from all other series of Securities); (2) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07); (3) the date or dates on which the principal of the Securities of the series is payable or the manner in which such dates are determined; (4) the rate or rates at which the Securities of the series shall bear interest, or the manner in which such rates are to be determined, the date or dates from which such interest shall accrue, or the manner in which such dates are to be determined, the Interest Payment Dates on which such interest shall be payable and the Record Dates, if any, for the interest payable on any Interest Payment Date; (5) the place or places where the principal of (and premium, if any, on) and interest, if any, on Securities of the series shall be payable; (6) the period or periods within which, the date or dates on which, the price or prices at 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; (7) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which Securities of the series shall be issuable; (8) if other than the Trustee, the identity of the Securities Registrar and/or the Paying Agent; -14- (9) if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02; (10) if other than such coin or currency of the United States of America as at the time of payment is legal tender for payment of public or private debts, the coin or currency or currency unit in which payment of the principal of (and premium, if any, on) or interest, if any, on the Securities of the series shall be payable; (11) if the amount of payment of principal of (and premium, if any, on) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method based on a coin or currency or currency unit other than that in which the Securities are stated to be payable, the manner in which such amounts shall be determined; (12) if the principal of (and premium, if any, on) or interest, if any, on the Securities of the series are to be payable, at the election of the Company or a Holder thereof, in a coin or currency or currency unit other than that in which the Securities are stated to be payable, the period or periods within which, or the date or dates on which and the terms and conditions upon which, such election may be made; (13) whether the Securities of the series are subject to defeasance or covenant defeasance, or such other means of satisfaction and discharge as may be specified for a series; (14) any deletions or modifications of or additions to the Events of Default set forth in Section 5.01 or covenants of the Company set forth in Article Eight or Ten pertaining to the Securities of the series; (15) the forms of the Securities of any series; (16) whether any Securities will be represented by a global Security (a "Global Security") and the terms of any such Global Security; (17) the applicable CUSIP numbers; and (18) any other terms, conditions, rights and preferences (or limitations on such rights and preferences) relating to the series (which terms shall not be inconsistent with the provisions of this Indenture). Not all Securities of any one series need be issued at the same time, and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series. If any of the terms of the series are established by action taken pursuant to a Board Resolution, such Board Resolution and the Officers' Certificate setting forth the terms of the series shall be delivered to the Trustee at or prior to the delivery of the Company Order for authentication and delivery of Securities of such series. -15- The principal of (and premium, if any, on) and interest on the Securities shall be payable at the office or agency of the Company in the Borough of Manhattan, The City of New York, maintained for such purpose and at any other office or agency maintained by the Company for such purpose; provided, however, that interest may be payable at the option of the Company by check mailed to the address of the person entitled thereto as such address shall appear on the Securities Register. SECTION 3.02. Denominations The Securities of each series shall be issuable in definitive registered form without coupons and in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such provision with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof. SECTION 3.03. Execution, Authentication, Delivery and Dating The Securities shall be executed on behalf of the Company by its Chairman of the Board, its President, a Vice Chairman or one of its Vice Presidents, under its corporate seal reproduced thereon attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or facsimile. Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities. At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities; and the Trustee in accordance with such Company Order shall authenticate and deliver such Securities as in this Indenture provided and not otherwise. If not all the Securities of any series are to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and the determination of the terms of particular Securities of such series such as interest rate, Stated Maturity, date of issuance and date from which interest shall accrue. 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 shall be fully protected in relying upon, an Opinion of Counsel stating: (a) that the form or forms and terms of such Securities have been established in conformity with the provisions of this Indenture and (b) that such Securities, when completed by appropriate insertions and executed by the Company and delivered to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued -16- by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute the legal, valid and binding obligations of the Company. If not all the Securities of any series are to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion with appropriate modifications shall be delivered at or before the time of issuance of the first Security of such series. The Trustee shall not be required to authenticate Securities if the issuance of such Securities pursuant to this Indenture will affect the Trustee's own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. Each Security shall be dated the date of its authentication. No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. SECTION 3.04. Temporary Securities Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. If temporary Securities of any series are issued, the Company will cause definitive securities of each such series to be prepared without unreasonable delay. After the preparation of definitive Securities of any series, the temporary Securities of each such series shall be exchangeable for definitive Securities upon surrender of the temporary Securities of such series at any office or agency of the Company designated pursuant to Section 10.02, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series. SECTION 3.05. Registration, Registration of Transfer and Exchange The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency designated pursuant to Section 10.02 being herein sometimes collectively referred to as the "Securities Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the -17- registration of Securities and of transfers of Securities. The Trustee is hereby appointed "Securities Registrar" for the purposes of registration and transfer of Securities as herein provided. Upon surrender for registration of transfer of any Securities of a series at an office or agency of the Company designated pursuant to Section 10.02 for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of any authorized denominations, of a like aggregate principal amount. At the option of the Holder, Securities of a series may be exchanged for other Securities of the same series, of any authorized denominations, of a like aggregate principal amount, upon surrender of the Securities of such series to be exchanged at such office or agency, and upon payment, if the Company shall so require, of the charges hereinafter provided. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive. All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange. Every Security presented or surrendered for registration of transfer or exchange shall (if so required by the Company or the Securities Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Securities Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing. No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.04 or 9.06 not involving any transfer. The Company shall not be required to (i) issue, register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 11.03 and ending at the close of business on the day of the mailing of notice of redemption or (ii) register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part. Any Holder of a Global Security shall, by acceptance of such Global Security, agree that transfers of beneficial interests in such Global Security may be effected only through a book entry system maintained by the Holder of such Global Security (or its agent), and that ownership of a beneficial interest in the Security shall be required to be reflected in a book entry. -18- SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of like series, tenor and principal amount and bearing a number not contemporaneously outstanding. If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of like series, tenor and principal amount and bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith. Every new Security issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities duly issued hereunder. The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities. SECTION 3.07. Payment of Interest; Interest Rights Preserved Interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date or within five days thereafter shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for such interest; provided, however, that each installment of interest on any Security may at the Company's option be paid by mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 3.08, to the address of such Person as it appears on the Securities Register. Any interest on any Security which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date or within five days thereafter (herein called "Defaulted Inter- -19- est") shall forthwith cease to be payable to the registered Holder on the relevant Record Date; and, except as hereinafter provided, such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date, and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first class postage prepaid, to each Holder at his address as it appears in the Securities Register not less than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and at the expense of the Company, cause a similar notice to be published at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York, but such publication shall not be a condition precedent to the establishment of such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities (or their respective Predecessor Securities), are registered on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). (2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section 3.07, each Security delivered under this Indenture upon transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security. SECTION 3.08. Persons Deemed Owners Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of -20- (and premium, if any, on) and (subject to Section 3.07) interest, if any, on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. SECTION 3.09. Cancellation All Securities surrendered for payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in its customary manner. SECTION 3.10. Computation of Interest Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, any interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. SECTION 3.11. Interest Act (Canada) For the purposes only of the disclosure required by the Interest Act (Canada), and without affecting the amount of interest payable to any Holder or the calculation of interest on any Securities, if any rate of interest on any Securities is calculated on the basis of a year (the "deemed year") which contains fewer days than the actual number of days in the calendar year of calculation, such rate of interest shall be expressed as a yearly rate for the purposes of the Interest Act (Canada) by multiplying such rate of interest by the actual number of days in the calendar year of calculation and dividing it by the number of days in the deemed year. SECTION 3.12. CUSIP Numbers The Company in issuing the Securities may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use CUSIP numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP numbers. SECTION 3.13. Book-Entry Provisions for Global Security. (a) Any Global Security of a series initially shall (i) be registered in the name of the depository who shall be The Depository Trust Company or as otherwise identified in the Board Resolution authorizing the issuance of such series of Securities (the "Depository") or the nominee of -21- such Depository, (ii) be delivered to the Trustee as custodian for such Depository and (iii) bear any required legends. Members of, or participants in, the Depository ("Agent Members") shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depository, or the Trustee as its custodian, or under the Global Security, and the Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depository or impair, as between the Depository and its Agent Members, the operation of customary practices governing the exercise of the rights of a Holder of any Security. (b) Transfers of any Global Security shall be limited to transfers in whole, but not in part, to the Depository, its successors or their respective nominees. Interests of beneficial owners in the Global Security may be transferred or exchanged for definitive Securities in accordance with the rules and procedures of the Depository. In addition, definitive Securities shall be transferred to all beneficial owners in exchange for their beneficial interests in a Global Security if (i) the Depository notifies the Company that it is unwilling or unable to continue as Depository for the Global Security and a successor depository is not appointed by the Company within 90 days of such notice or (ii) an Event of Default has occurred and is continuing. (c) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Security to beneficial owners pursuant to paragraph (b), the Securities Registrar shall (if one or more definitive Securities are to be issued) reflect on the Securities Register the date and a decrease in the principal amount of the Global Security in an amount equal to the principal amount of the beneficial interest in the Global Security to be transferred, and the Company and the Guarantor shall execute, and the Trustee shall authenticate and deliver, one or more definitive Securities of like tenor and amount. (d) In connection with the transfer of an entire Global Security to beneficial owners pursuant to paragraph (b), the Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company and the Guarantor shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depository in exchange for its beneficial interest in the Global Security, an equal aggregate principal amount of definitive Securities of authorized denominations. (e) The Holder of any Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Securities of such series. -22- ARTICLE FOUR SATISFACTION AND DISCHARGE: UNCLAIMED MONEYS SECTION 4.01. Satisfaction and Discharge of Indenture (A) If at any time (a) the Company shall have paid or caused to be paid the principal of and interest on all the Securities of any series outstanding hereunder, as and when the same shall have become due and payable, or (b) the Company shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 3.06), or (c) (i) all the Securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption; and (ii) the Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee (or an escrow agent satisfactory to the Trustee) as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Company in accordance with Section 4.04) or direct noncallable obligations of, or noncallable obligations guaranteed by, the United States of America or an agency thereof for the payment of which guarantee or obligation the full faith and credit of the United States is pledged ("U.S. Government Obligations"), maturing as to principal and interest in such amounts and at such times without consideration of any reinvestment of such principal and interest as will ensure the availability of cash, or a combination of U.S. Government Obligations and cash, sufficient to pay at Stated Maturity all the Securities of such series not theretofore delivered to the Trustee for cancellation, including principal (and premium, if any) and interest due or to become due to such date of Stated Maturity or Redemption Date, as the case may be, and if, in any such case, the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to Securities of such series, then this Indenture, the Guarantee Agreement and the Guarantee shall cease to be of further effect with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange, (ii) substitution of apparently mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights of Holders to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor or Redemption Date (but not upon acceleration), (iv) the rights, obligations and immunities of the Trustee hereunder, and (v) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Company accompanied by (i) an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided relating to the -23- satisfaction and discharge of this Indenture, the Guarantee Agreement and the Guarantee with respect to Securities of such series have been complied with and at the cost and expense of the Company, and (ii) an opinion of independent legal counsel who shall be acceptable to Trustee (a) stating that (1) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (2) since the date of this Indenture there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and based thereon such opinion of independent legal counsel shall confirm that, the Holders of the Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred and (b) stating that Holders of the Securities will not recognize income, gain or loss for Canadian income tax purposes as a result of such deposit and discharge and will be subject to Canadian income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, shall execute proper instruments acknowledging such satisfaction of and discharging of this Indenture, the Guarantee Agreement and the Guarantee with respect to Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding the foregoing provisions of this Section 4.01(A), the Company's obligations in Section 6.07 shall survive such satisfaction and discharge. (B) In addition to the provisions of the next preceding paragraph, the Company may terminate its obligations under the Securities of any series and this Indenture and the Guarantor may terminate its obligations under the Guarantee and the Guarantee Agreement, except those obligations referred to in the penultimate paragraph of this Section 4.01, if all Securities of such series previously authenticated and delivered (other than destroyed, lost or stolen Securities of such series which have been replaced or paid or Securities of such series for whose payment money or securities have theretofore been held in trust and thereafter repaid to the Company, as provided in Section 4.04) have been delivered to the Trustee for cancellation and the Company has paid all sums payable by it hereunder, or if the Company has irrevocably deposited or caused to be deposited with the Trustee (or an escrow agent satisfactory to the Trustee), under the terms of an irrevocable trust agreement in form and substance satisfactory to the Trustee, as trust funds in trust solely for the benefit of the Holders for that purpose, (i) money or (ii) U.S. Government Obligations, or a combination thereof, maturing as to principal and interest in such amounts and at such times as are sufficient without consideration of any reinvestment of such principal or interest, to pay principal of and interest on the outstanding Securities of such series to maturity; provided that the Trustee shall have been irrevocably instructed to apply such money or the proceeds of such U.S. Government Obligations to the payment of said principal of and interest with respect to the outstanding Securities of such series. Such irrevocable trust agreement shall include, among other things, provision for (1) payment of the principal of and interest on the Securities of such series, when due, (2) payment of -24- the fees and expenses of the Trustee, its agents and counsel incurred or to be incurred in connection with carrying out such trust provisions, (3) rights of registration, transfer, substitution and exchange of Securities of such series in accordance with the terms stated in this Indenture, and (4) continuation of the rights and obligations and immunities of the Trustee as against the Holders as stated in this Indenture. Notwithstanding the first paragraph of this Section 4.01(B), the Company's obligations in Sections 3.05, 3.06, 4.04, 4.05, 5.02, 6.07, 6.10, 10.01 and 10.02 shall survive until the Securities of such series are no longer outstanding; provided, however, that the Company's obligations in Section 5.02 shall survive only with respect to an Event of Default defined in Section 5.01(2) or 5.01(3). Thereafter the Company's obligations in Sections 4.04, 4.05 and 6.07 shall survive. After any such irrevocable deposit, accompanied by an Officers' Certificate which shall state that the provisions of the first two paragraphs of this Section 4.01(B) have been complied with, and upon delivery by the Company to the Trustee of (a) an opinion of independent legal counsel who shall be acceptable to the Trustee, or, in lieu thereof, a favorable determination by the Internal Revenue Service to the effect that Holders of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit and discharge and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same time as would have been the case if such deposit and discharge had not occurred and (b) an opinion of independent legal counsel who shall be acceptable to Trustee stating that Holders of the Securities will not recognize income, gain or loss for Canadian income tax purposes as a result of such deposit and discharge and will be subject to Canadian income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred, then the Company shall be discharged of its obligations under the Securities of such series and this Indenture with respect to such series of Securities except for those surviving obligations specified above, and the Trustee upon request shall acknowledge in writing such discharge. Prior to the delivery of such acknowledgment, the Trustee may require the Company to deliver to it an Officers' Certificate and Opinion of Counsel, each stating that all conditions precedent provided for relating to the deposit and discharge contemplated by this provision have been complied with, and the Opinion of Counsel shall also state that such deposit does not violate applicable law. SECTION 4.02. Deposited Moneys To Be Held in Trust by Trustee All moneys deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Company if acting as its own paying agent), to the Holders of the particular Securities of such series for the payment of which such moneys have been deposited with the Trustee of all sums due and to become due thereon for principal and interest. SECTION 4.03. Paying Agent To Repay Moneys Held Upon the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then hold by any paying agent of the Securities of such series (other than the Trus- -25- tee) 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 4.04. Return of Unclaimed Moneys Any moneys deposited with or paid to the Trustee for payment of the principal of or interest on Securities and not applied but remaining unclaimed by the Holders of Securities of any series for two years after the date upon which the principal of or interest on such Securities, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on written demand and all liability of the Trustee shall thereupon cease; and the Holder of any of the Securities of any series shall thereafter look only to the Company for any payment which such Holder may be entitled to collect. SECTION 4.05. Reinstatement If the Trustee is unable to apply any money or U.S. Government Obligations in accordance with Section 4.01 with respect to Securities of any series by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company's obligations under this Indenture with respect to the Securities of such series shall be revived and reinstated an though no deposit had occurred pursuant to Section 4.01 until such time as the Trustee is permitted to apply all such money or U.S. Government Obligations in accordance with Section 4.01; provided, however, that if the Company has made any payment of interest on or principal of any Securities of such series because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee. ARTICLE FIVE REMEDIES SECTION 5.01. Events of Default "Event of Default" with respect to Securities of any series, wherever used herein, means any one of the following events which shall have occurred and be continuing (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of the principal of any Security of such series as and when the same shall become due and payable, either at its Maturity or otherwise; or (2) default in the payment of any installment of interest on any Security of such series when it becomes due and payable, and the continuance of such default for a period of 30 days; or -26- (3) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture or the Securities, or the Guarantor in the Guarantee Agreement or in the Guarantee, in respect of the Securities of such series (other than a covenant or warranty in respect of the Securities of such series a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of all series affected thereby, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder; or (4) the entry of a decree or order by a court having jurisdiction in the premises adjudging the Company or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking relief, reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under U.S. federal bankruptcy law or any other applicable U.S. federal or state law or Canadian federal, provincial or territorial law, or appointing a receiver, liquidator, assignee, trustee, sequestrator, custodian or other similar official of the Company or the Guarantor or of any substantial part of its property, or ordering the winding up or liquidation of their respective affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days; or (5) the institution by the Company or the Guarantor of proceedings to be adjudicated a bankrupt or insolvent, or the consent by it to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under U.S. federal bankruptcy law or any other applicable U.S. federal or state law or Canadian federal, provincial or territorial law, or the consent by it to the filing of such petition or to the appointment of or taking of possession by a receiver, liquidator, assignee, trustee, sequestrator, custodian or similar official of the Company or the Guarantor or of any substantial part of their respective property, or the making by either of them of a general assignment for the benefit of creditors, or the admission by the Company or the Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or the Guarantor in furtherance of any such action; or (6) the Guarantee shall be held in a judicial proceeding to be unenforceable or ceases for any reason to be in full force and effect (other than in accordance with the terms of the Guarantee) or the Guarantor denies or disaffirms its obligation under the Guarantee; or (7) any other Event of Default provided with respect to Securities of that series. SECTION 5.02. Acceleration of Maturity; Rescission and Annulment If an Event of Default described in Section 5.01(l), (2), (3) (if the Event of Default under clause (3) is with respect to less than all series of Securities then Outstanding) or (7) above occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of the Securities of such series then Outstanding (each such series voting as a sepa- -27- rate class) may declare the principal of all the Securities of such series to be due and payable immediately, by a notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders), and upon any such declaration such principal shall become and shall be immediately due and payable, anything in this Indenture or in the Security or in the Guarantee or in the Guarantee Agreement contained to the contrary notwithstanding. Upon payment of such amount, all obligations of the Company in respect of the payment of principal of the Securities of such series, and of the Guarantor under the Guarantee of such series, shall terminate. If an Event of Default described in Section 5.01(3) (if the Event of Default under clause (3) is with respect to all series of Securities then Outstanding), Section 5.01(4) or (5) above occurs and is continuing, then and in every such case, unless the principal of all the Securities shall have already become due and payable, the Trustee or the Holders of not less than 25% in principal amount of all the Securities then Outstanding (treated as one class) which have not previously become due and payable may declare the entire principal of all the Securities then Outstanding to be due and payable immediately, by notice in writing to the Company and the Guarantor (and to the Trustee if given by Holders) and upon any such declaration such principal shall become and shall be immediately due and payable, anything in this Indenture or in the Securities or in the Guarantee or in the Guarantee Agreement contained to the contrary notwithstanding. Upon payment of such amount, all obligations of the Company in respect of the payment of principal of the Securities and of the Guarantor in respect of its Guarantee shall terminate. At any time after such a declaration of acceleration has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of each series so affected, by written notice to the Company, the Guarantor and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue installments of interest on the Securities of such series, and (B) the principal of (and premium, if any, on) with respect to any Securities of such series which have become due otherwise than by such declaration of acceleration, with interest thereon from the date such principal became due at the rate borne by the Securities of such series, and (C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate borne by the Securities of such series, and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and (2) all Events of Default, other than the nonpayment of the principal of Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13. -28- No such rescission shall affect any subsequent default or impair any right consequent thereon. SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee The Company covenants that if default is made in the payment of (1) any installment of interest on any Security of any series when such interest becomes due and payable and such default continues for a period of 30 days or (2) the principal of (and premium, if any, on) any Security of any series at the Maturity thereof or otherwise, the Company will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities of each series so affected, the whole amount then due and payable on such Securities of such series for principal (and premium, if any) or interest, if any, or both, as the case may be, with interest upon the overdue principal and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest, at the rate per annum borne by the Securities during the period of such default; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company, the Guarantor or any other obligor upon the Securities of each series so affected and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company, the Guarantor or any other obligor upon the Securities of each series so affected, wherever situated. If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. SECTION 5.04. Trustee May File Proofs of Claim In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company, the Guarantor or any other obligor upon the Securities or the property of the Company, the Guarantor or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of each series so affected 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 on the Company or the Guarantor for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (a) to file and prove a claim for the amount of principal (and premium, if any) and interest, if any, owing and unpaid in respect of the Securities of each series so affected and to file such other papers or documents as may be necessary or advisable in order to have the -29- claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding and (b) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, liquidator, sequestrator, custodian or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities, the Guarantee 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. SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities All rights of action and claims under this Indenture, the Securities, the Guarantee Agreement or the Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered. SECTION 5.06. Application of Money Collected Any money collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money an account of principal (and premium, if any) or interest, if any, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 6.07; SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any, on) and interest, if any, on the Securities of the series in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively; and THIRD: The balance, if any, to the Company. -30- SECTION 5.07. Limitation on Suits No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Guarantee Agreement, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series; (b) the Holders of not less than 25% in principal amount of the Outstanding Securities of each series affected (with each series voting as a separate class) shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of each series affected (with each series voting as a separate class); it being understood and intended that no one or more Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture or the Guarantee Agreement to affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture or the Guarantee Agreement, except in the manner herein provided and for the equal and ratable benefit of all the Holders. SECTION 5.08. Unconditional Right of Holders To Receive Principal and Interest Notwithstanding any other provision in this Indenture or the Guarantee Agreement, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium, if any, on) and (subject to Section 3.07) interest, if any, on such Security on or after the Stated Maturity expressed in such Security (or, in the case of redemption, the Redemption Date), and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder. SECTION 5.09. Restoration of Rights and Remedies If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture or the Guarantee Agreement and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then -31- and in every such case, subject to any determination in such proceeding, the Company, the Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. SECTION 5.10. Rights and Remedies Cumulative No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. SECTION 5.11. Delay or Omission Not Waiver No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. SECTION 5.12. Control by Holders The Holders of a majority in principal amount of the Outstanding Securities of each series affected (each series voting as a separate class) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee, with respect to the Securities or Guarantee of such series; provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture and (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. SECTION 5.13. Waiver of Past Defaults The Holders of not less than a majority in principal amount of the Outstanding Securities of each series (each series voting as a separate class) may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default (a) in the payment of the principal of (and premium, if any, on) or interest, if any, on any Security or -32- (b) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. SECTION 5.14. Undertaking for Costs All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken 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 and expenses, 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 5.14 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 of the Outstanding Securities of each series affected, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series on or after the Stated Maturity expressed in such Security (or, in the case of redemption, on or after the Redemption Date). ARTICLE SIX THE TRUSTEE SECTION 6.01. Certain Duties and Responsibilities (a) With respect to the Securities of any series, except during the continuance of an Event of Default with respect to Securities of such series, (1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee and (2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture or the Guarantee Agreement; 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 require- -33- ments of this Indenture or the Guarantee Agreement, as the case may be (but need not confirm or investigate the accuracy of any mathematical calculations or other facts stated therein). (b) In case an Event of Default with respect to the Securities of any series has occurred and is continuing, the Trustee shall with respect to the Securities of such series, exercise such of the rights and powers vested in it by this Indenture and the Guarantee Agreement, 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 such person's own affairs. (c) No provision of this Indenture or the Guarantee Agreement 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 (1) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section 6.01; (2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and (3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it with respect to the Securities of any series in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such 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 or the Guarantee Agreement. No provision of this Indenture or the Guarantee Agreement shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers. SECTION 6.02. Notice of Defaults Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of such series entitled to receive reports pursuant to Section 7.04, notice of such default hereunder known to the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (and premium, if any) or interest, if any, on any Security of such series, the Trustee shall be protected in withholding such notice if and so long as the Board of Directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interest of the Holders; and provided, further, that in the case of any default of the character specified in Section 5.01(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 6.02, the term "default" means any event which is, -34- or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series. SECTION 6.03. Certain Rights of Trustee Except as otherwise provided in Section 6.01: (a) the Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) 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, direction, consent, order, bond, debenture, note or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, at the expense of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (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 and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; -35- (h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture; (i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture; and (j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder. SECTION 6.04. Not Responsible for Recitals or Issuance of Securities The recitals contained herein and in the Securities, except the Trustee's certificates of authentication, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Company of Securities or the proceeds thereof. SECTION 6.05. May Hold Securities The Trustee, any Paying Agent, any Securities Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company or the Guarantor with the same rights it would have if it were not the Trustee, Paying Agent, Securities Registrar or such other agent. SECTION 6.06. Money Held in Trust Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Company. SECTION 6.07. Compensation and Reimbursement The Company agrees (a) to pay to the Trustee from time to time such compensation as shall be agreed upon in writing from time to time for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); -36- (b) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel) except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and (c) to indemnify the Trustee and any predecessor Trustee for, and to hold it harmless against, any and all loss, liability, claim, damage or expense incurred without negligence or willful misconduct on its part, 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 or liability in connection with the exercise or performance of any of its powers or duties hereunder. As security for the performance of the obligations of the Company under this Section 6.07, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of or interest, if any, on the Securities. SECTION 6.08. Disqualification; Conflicting Interests If the Trustee has or shall acquire any conflicting interest within the meaning of the Trust Indenture Act with respect to the Securities of any series, it shall either eliminate such conflicting interest or resign with respect to the Securities of such series, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. The following Indentures between the Guarantor and the Trustee shall be excluded from the application of Section 310(b)(1) of the Trust Indenture Act: Indentures dated as of June 15, 1990, October 1, 1991 and April 1, 1992. SECTION 6.09. Corporate Trustee Required; Eligibility There shall at all times be a Trustee hereunder with respect to each series of Securities which shall be a Person eligible under the Trust Indenture Act, having a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by U.S. Federal or State authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.09, 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. No obligor of the Securities or Person directly or indirectly controlling, controlled by or under common control with such obligor or the Guarantor shall serve as Trustee upon such Securities. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 6.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six. -37- SECTION 6.10. Resignation and Removal; Appointment of Successor (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11. (b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the receipt of such notice of removal, the removed Trustee may petition at the expense of the Company any court of competent jurisdiction for the appointment of a successor Trustee. (d) If at any time with respect to any series of Securities: (1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security of such series for at least six months, or (2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or (3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to such series of Securities or (ii) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders -38- of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of the Securities of one or more or all series, as the case may be, to which the resignation, removal or appointment relates, as their names and addresses appear in the Securities Register. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. SECTION 6.11. Acceptance of Appointment by Successor (a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject, nevertheless to its lien, if any, provided for in Section 6.07. (b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and, upon the execution and delivery of such supplemental -39- indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section 6.11, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article Six. SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. SECTION 6.13. Preferential Collection of Claims Against Company If and when the Trustee shall become a creditor of the Company or the Guarantor (or any other obligor of the Securities), the Trustee shall be subject to the terms of the Trust Indenture Act regarding collection of claims against the Company (or such obligor). SECTION 6.14. Trustee's Application for Instructions from the Company Any application by the Trustee for written instructions from the Company may, at the option of the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under this Indenture and the date on and/or after which such action shall be taken or such omission shall be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee in accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any -40- earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted. ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY SECTION 7.01. Company To Furnish Trustee Names and Addresses of Holders The Company will furnish or cause to be furnished to the Trustee: (a) semiannually, not more than 15 days after each Record Date, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders as of such Record Date and (b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; excluding from any such list names and addresses received by the Trustee in its capacity as Securities Registrar. SECTION 7.02. Preservation of Information; Communications to Holders (a) The Trustee shall preserve, in as current a form as is reasonably practicable, (i) the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and (ii) the names and addresses of Holders received by the Trustee in its capacity as Securities Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished. (b) Holders may communicate as provided in Section 312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or under the Securities. (c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders in accordance with paragraph (b) of this Section 7.02, 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 paragraph (b) of this Section 7.02. -41- SECTION 7.03. Reports by Trustee (a) Within 60 days after June 15 of each year commencing with June 15, 2001, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required under the Trust Indenture Act at the time and in the manner provided therein. (b) A copy of each such report shall, at the time of transmission to Holders, be filed by the Trustee with each stock exchange upon which the Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when the Securities are listed on any stock exchange. SECTION 7.04. Reports by Company (a) The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Company is required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended and shall otherwise comply with Section 314(a) of the Trust Indenture Act. (b) The Company shall furnish to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company's compliance with all conditions and covenants under this Indenture. For purposes of this paragraph (b), such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee's receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company's compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer's Certificates). ARTICLE EIGHT CONSOLIDATION, MERGER, AMALGAMATION, CONVEYANCE, TRANSFER OR LEASE SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms The Company shall not consolidate with or merge, amalgamate into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) in case the Company shall consolidate or amalgamate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any -42- Person, the Person formed by such consolidation or the continuing Person resulting from such amalgamation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation, partnership, limited liability company, unlimited liability company or trust organized and existing under the laws of the United States of America, any state thereof or the District of Columbia or under the laws of Canada or any province or territory thereof and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of and interest, if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed; (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been complied with. SECTION 8.02. Successor Corporation Substituted Upon any consolidation, amalgamation, or merger by the Company with or into any other Person or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety to any Person in accordance with Section 8.01, the successor corporation, partnership, limited liability company, unlimited liability company or trust formed by or resulting from such consolidation or amalgamation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor corporation, partnership, limited liability company, unlimited liability company or trust had been named as the Company herein, and thereafter, except in the case of a lease to another Person, the predecessor Person shall be relieved of all obligations and covenants under this Indenture and the Securities. SECTION 8.03. Assignment by the Company to the Guarantor or its other Subsidiaries (a) The Company may assign its obligations under any series of Securities to the Guarantor or any Subsidiary of the Guarantor (the "Affiliate Assignee") and such Affiliate Assignee shall be treated as the successor to the Company with respect to such series of Securities; provided that: (i) the Affiliate Assignee expressly assumes in an assumption agreement or supplemental indenture hereto, executed and delivered to the Trustee, the due and punctual payment of the principal of and any premium and interest on such Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed; (ii) immediately after giving effect to such assignment and assumption, no Event of Default and no event, which after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; -43- (iii) the Affiliate Assignee shall deliver to the Trustee an opinion of an independent counsel or a tax consultant of recognized standing that the Holders will not recognize income, gain or loss for United States federal income tax purposes as a result of such assignment and assumption by the date of such assignment and assumption; and (iv) the Affiliate Assignee shall have delivered to the Trustee an Officers' Certificate stating that such assignment and assumption and such assumption agreement comply with this Article and that all conditions precedent herein provided for relating to such assignment and assumption have been complied with. (b) Upon any assignment and assumption of Securities pursuant to Section 8.03(a), the Affiliate Assignee shall succeed to, and be substituted for, and may exercise every right and power of, the Company under such Securities and this Indenture with the same effect as if the Affiliate Assignee had been named as the Company herein, and the Company shall be released from its liability as obligor upon such Securities and under this Indenture and, if the Affiliate Assignee is the Guarantor and the Guarantor has assumed the obligations of the Company under an outstanding series of Securities and the Indenture in accordance with (a) above, all outstanding Guarantees of such series of Securities shall automatically terminate and be discharged. ARTICLE NINE SUPPLEMENTAL INDENTURES SECTION 9.01. Supplemental Indentures Without Consent of Holders Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Company and the assumption by any such successor of the covenants of the Company herein and in the Securities; or (2) to add to the covenants of the Company for the benefit of the Holders of all or any series of Securities, or to surrender any right or power herein conferred upon the Company; or (3) to secure the Securities; or (4) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture; provided such action shall not adversely affect the interests of the Holders in any material respect; or (5) 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 -44- of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Section 6.11. SECTION 9.02. Supplemental Indentures With Consent of Holders With the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (each such series voting as a separate class), by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each outstanding Security affected thereby, (1) change the Stated Maturity of the principal of (or premium, if any, on), or any installment of principal of or interest, if any, on, any Security, or reduce the principal amount thereof or the interest thereon, or change the place of payment where, or the coin or currency in which, any Security or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof, or (2) reduce the percentage in principal amount 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 this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or (3) modify any of the provisions of this Section 9.02 or Section 5.13, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby. A supplemental indenture that 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 that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. -45- SECTION 9.03. Execution of Supplemental Indentures In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. SECTION 9.04. Effect of Supplemental Indentures Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. SECTION 9.05. Conformity With Trust Indenture Act Every supplemental indenture executed pursuant to this Article Nine shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 9.06. Reference in Securities to Supplemental Indentures Securities authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall, if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities. ARTICLE TEN COVENANTS SECTION 10.01. Payment of Principal and Interest For the benefit of each series of Securities, the Company will duly and punctually pay the principal of (and premium, if any) and interest, if any, on the Securities of that series in accordance with the terms of such Securities and this Indenture. SECTION 10.02. Maintenance of Office or Agency The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where Securities may -46- be presented or surrendered for payment, where Securities may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in or outside The City of New York) where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in the Borough of Manhattan, The City of New York, for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. SECTION 10.03. Money for Security Payments To Be Held in Trust If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents, it will, on each due date of the principal of (or premium, if any) or interest, if any, on any Securities, deposit with a Paying Agent a sum sufficient to pay the principal or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal 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. The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.3, that such Paying Agent will: (a) hold all sums held by it for the payment of the principal of (or premium, if any) or interest, if any, on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; (b) give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal of (or premium, if any, on) or interest, if any, on the Securities of that series when the same shall be due and payable; and -47- (c) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. SECTION 10.04. Limitation on Liens The Company will not itself, and will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee any Debt secured after the date hereof by pledge of, or mortgage or lien on (herein referred to as "Lien"), any Principal Property of the Company or any Restricted Subsidiary or any shares of Capital Stock of or Debt of any Restricted Subsidiary, without effectively providing that the Securities (together with, if the Company shall so determine, any other Debt of the Company or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the option of the Company, prior to) such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured Debt of the Company and the Restricted Subsidiaries, would not at that time exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 10.04 shall not apply to, and there shall be excluded from secured Debt in any computation under this Section 10.04, Debt secured by: (1) Liens on any property or any interest therein, construction thereon or improvement thereto to secure all or any part of the costs incurred after the date hereof for surveying, exploration, drilling, mining or other extraction, development, construction, alteration, repair or improvement of, in, under or on such property or to secure Debt incurred to provide funds for any such purpose (it being understood that, in the case of oil, gas or mineral properties, or interests therein, costs incurred after the date hereof for "development" shall include costs incurred for all facilities relating to such properties or to projects, ventures or other arrangements of which such properties form a part or which relate to such properties or interests, which facilities may include, without limitation, any drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements; (2) Liens or the creation of encumbrances on an oil and/or gas or mineral producing property to secure obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to commitments of purchase or sale of, or the transportation or distribution of, the products derived from such property; -48- (3) Liens on drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; real and personal property used primarily for purposes other than those of Principal Properties; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements; (4) Liens on property existing at the time of acquisition of such property or mortgages to secure the payment of all or any part of the purchase price of such property or to secure any Debt, incurred prior to, at the time of or within 24 months after the acquisition of such property for the purpose of financing all or any part of the purchase price thereof; (5) Liens (a) in favor of the United States of America or any State thereof, or any other country, or any municipality therein or any political subdivision, department, agency or instrumentality of any of them to secure moneys borrowed from or by such authorities, whether or not such moneys are borrowed or the repayment thereof is guaranteed by the Company or by a Restricted Subsidiary, including, without limitation, Liens to secure Debt issued, assumed or guaranteed in pollution control or industrial revenue bond financings, or (b) to secure the performance of any covenant or obligation to or in favor of or entered into at the request of such authorities where such security is required pursuant to any contract, order, direction, regulation or statute; (6) Liens in existence prior to the date hereof; (7) Liens by any Restricted Subsidiary pursuant to the terms of any trust deed or similar document entered into by such Restricted Subsidiary, or by a predecessor of such Restricted Subsidiary, prior to the date when it became a Subsidiary; (8) Liens existing on any of the properties of, or on any shares of Capital Stock or Debt of, a corporation (including, but not limited to, a Restricted Subsidiary) at the time when such corporation becomes a Subsidiary or is consolidated with or merged into the Company or a Subsidiary or Liens existing upon property, Capital Stock or Debt at the time of acquisition thereof; (9) Liens which secure only indebtedness owing by a Subsidiary to the Company or by a Subsidiary or the Company to a Subsidiary; -49- (10) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) to (9) inclusive, so long as such extension, renewal or replacement of such Lien is limited to all or any part of the same property, shares of Capital Stock or Debt that secured the Lien extended, renewed or replaced (plus improvements on such property); (11) pledges or deposits under workmen's compensation, unemployment insurance or similar statutes, mechanics', workmen's, repairmen's, materialmen's, carriers' or other similar Liens arising in the ordinary course of business or deposits or pledges to obtain the release of any such Liens; (12) Liens (a) created by or resulting from any litigation or other proceedings, including Liens arising out of judgments or awards against the Company or any Restricted Subsidiary, with respect to which the Company or such Restricted Subsidiary is in good faith prosecuting an appeal or proceeding for review, or (b) incurred by the Company or any Restricted Subsidiary for the purpose of obtaining a stay or discharge in the course of any legal proceeding to which the Company or such Restricted Subsidiary is a party; (13) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings, landlord's Liens on property held under lease, and other Liens of a nature similar to those hereinabove described in this clause (13) which do not, in the opinion of the Company or such Restricted Subsidiary, materially impair the use of such property in the operation of the business of the Company or such Restricted Subsidiary or the value of such property for the purpose of such business; (14) easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the ordinary conduct of the business of the Company or any Restricted Subsidiary; and (15) Liens secured by pipeline assets of El Paso Natural Gas Company; and provided, further, that the following types of transactions, among others, shall not be deemed to create Debt secured by a Lien: the sale (including any forward sale) or other transfer of (i) oil, gas, gold or other minerals, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (ii) any other interest in property of the character commonly referred to as a "production payment, "ore payment", "royalty interest", "overriding royalty interest", or "mineral payment", or farmouts, the creation of working interest, joint operating or unitization agreements, or other similar transactions. SECTION 10.05. Waiver of Certain Covenants The Company may omit in any particular instance to comply with any covenant or condition set forth in Section 10.04 if, before or after the time for such compliance, the Holders of at -50- least a majority in principal amount of the Outstanding Securities of each series shall, by notice to the Trustee, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. SECTION 10.06. Withholding and Reporting Obligations of Paying Agent The Paying Agent will comply with all applicable United States withholding, backup withholding, and information reporting requirements imposed upon it by the Internal Revenue Code and the Treasury Regulations issued thereunder. ARTICLE ELEVEN REDEMPTION OF SECURITIES SECTION 11.01. Applicability of Article Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified, as contemplated by Section 3.01 for Securities of any series) in accordance with this Article Eleven; provided, however, that if any provision of any such Security shall conflict with any provision of this Article Eleven, the provision of such Security shall govern. Except as otherwise set forth in any Security, each Security shall be subject to partial redemption only in the amount of $1,000 or integral multiples thereof. SECTION 11.02. Election to Redeem; Notice To Trustee The right of the Company to elect to redeem any Securities of any series shall be set forth in the terms of such Securities of such series established in accordance with Section 3.01. In case of any redemption at the election of the Company, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed pursuant to Section 11.03. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. SECTION 11.03. Selection by Trustee of Securities To Be Redeemed If less than all the Securities of any series are to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series not previously called for redemption, by such method -51- as may be specified by the terms of such Securities or, if no such method is so specified, by such method as the Trustee shall deem appropriate and which may provide for the selection for redemption of portions of the principal amount of Securities of such series. The Trustee shall promptly notify the Company in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed. SECTION 11.04. Notice of Redemption Notice of redemption shall be given by the Company or, at the Company's request, by the Trustee to the Holders of the Securities to be redeemed, by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at such Holder's address appearing in the Securities Register. All notices of redemption shall state: (1) the Redemption Date; (2) the Redemption Price; (3) if less than all the Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Securities to be redeemed; (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date; (5) the place or places where such Securities are to be surrendered for payment of the Redemption Price; and (6) the applicable CUSIP Numbers. SECTION 11.05. Deposit of Redemption Price On or before any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date. -52- SECTION 11.06. Securities Payable on Redemption Date Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price and at the place or places therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07. If any Security called for redemption shall not be so paid upon surrender therefor, the Redemption Price shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security. SECTION 11.07. Securities Redeemed in Part Any Security that is to be redeemed only in part shall be surrendered at the place of payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to, the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. S-1 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written. BURLINGTON RESOURCES FINANCE COMPANY, as Issuer By: ---------------------------------------------- Name: Title: CITIBANK, N.A., as Trustee By: ---------------------------------------------- Name: Title: EX-4.2 4 0004.txt GUARANTEE AGREEMENT ================================================================================ GUARANTEE AGREEMENT made by BURLINGTON RESOURCES INC. as Guarantor dated as of February 12, 2001 ================================================================================ TABLE OF CONTENTS Page ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION SECTION 1.01. Definitions...................................................1 ARTICLE TWO GUARANTEE SECTION 2.01. Unconditional Guarantee.......................................3 SECTION 2.02. Execution of Guarantee........................................3 SECTION 2.03. Subordination of Subrogation and Other Rights.................4 ARTICLE THREE CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 3.01. Guarantor May Consolidate, Etc., Only on Certain Terms........4 SECTION 3.02. Successor Corporation Substituted.............................5 SECTION 3.03. Assignment to the Guarantor of the Company's Obligations.......5 ARTICLE FOUR AMENDMENTS SECTION 4.01. Amendments Without Consent of Holders..........................5 SECTION 4.02. Amendments With Consent of Holders.............................6 SECTION 4.03. Execution of Amendments........................................6 SECTION 4.04. Effect of Amendments...........................................6 SECTION 4.05. Conformity With Trust Indenture Act............................7 SECTION 4.06. Reference in Guarantees to Amendments..........................7 ARTICLE FIVE COVENANTS SECTION 5.01. Money for Security Payments To Be Held in Trust................7 SECTION 5.02. Limitation on Liens............................................7 SECTION 5.03. Waiver of Certain Covenants...................................10 SECTION 5.04. Reports by Guarantor..........................................10 -i- Page ARTICLE SIX MISCELLANEOUS SECTION 6.01. Trust Indenture Act...........................................11 SECTION 6.02. Effect of Headings and Table of Contents......................11 SECTION 6.03. Successors and Assigns........................................11 SECTION 6.04. Separability Clause...........................................11 SECTION 6.05. Benefits of Agreement.........................................11 SECTION 6.06. Governing Law.................................................12 SECTION 6.07. Notices, Etc., to the Guarantor...............................12 EXHIBIT A Form of Guarantee -ii- GUARANTEE AGREEMENT (this "Agreement"), dated as of February 12, 2001, made by Burlington Resources Inc., a Delaware corporation (the "Guarantor"), whose principal place of business is 5051 Westheimer, Suite 1400, Houston, Texas 77056, the parent of Burlington Resources Finance Company, an unlimited liability company organized under the laws of Nova Scotia, Canada, (the "Company"), in favor of the Holders (as defined in the Indenture referred to below) and the Trustee (as defined below). Reference is made to the Indenture (as the same may be amended, restated, supplemented or modified from time to time, the "Indenture") between the Company and Citibank, N.A., as trustee (the "Trustee") dated as of February 12, 2001, relating to the securities issued thereunder (the "Securities"). RECITALS OF THE GUARANTOR The Guarantor has duly authorized the execution and delivery of this Agreement and has agreed to guarantee the Securities pursuant to the terms of the Indenture and this Agreement; All things necessary to make this Agreement a valid agreement of the Guarantor, in accordance with its terms, have been done. NOW, THEREFORE, THIS AGREEMENT WITNESSETH: That in order to declare the terms and conditions upon which the guarantee of the securities (the "Guarantee") is made, executed, authenticated and delivered, the Guarantor covenants and agrees, for the equal and proportionate benefit of all Holders (as defined below) of the Securities or of any series thereof, as follows: ARTICLE ONE Definitions and other provisions of general application SECTION 1.01. Definitions For all purposes of this Agreement hereto, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article One have the meanings assigned to them in this Article One and include the plural as well as the singular; -2- (2) the capitalized terms not defined in this Agreement have the meanings assigned to them in the Indenture; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles, and, except as otherwise herein expressly provided, the term "generally accepted accounting principles" with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of this Agreement; and (4) the words "herein," "hereof" and "hereunder" and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision. "Consolidated Net Tangible Assets" means the aggregate amount of assets of the Guarantor and its Subsidiaries (less applicable reserves and other properly deductible items) after deducting therefrom (i) all current liabilities (excluding any 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 (ii) all goodwill, trade names, trademarks, patents, organization expenses and other like intangibles of the Guarantor and its Subsidiaries, all as set forth on the most recent balance sheet of the Guarantor and its Subsidiaries and computed in accordance with generally accepted accounting principles. "Principal Property" means any oil, gas or mineral producing property, or any refining, processing, smelting or manufacturing facility, of the Guarantor or any Restricted Subsidiary located in the United States of America, other than (i) property employed in transportation, distribution or marketing, (ii) information and electronic data processing equipment, (iii) any refinery, preparation plant, concentrator, smelter, mill or handling, processing or manufacturing facility in which the interests held by the Guarantor or by one or more Restricted Subsidiaries or both and by others and the aggregate interest held by the Guarantor and all Restricted Subsidiaries does not equal or exceed 50%, (iv) any property which in the opinion of the Board of Directors of the Guarantor is not materially important to the total business conducted by the Guarantor and its Subsidiaries as an entirety or (v) any property or a portion of a particular property which in the opinion of the Board of Directors of the Guarantor is not materially important to the use or operation of such property. "Restricted Subsidiary" means a Subsidiary of the Guarantor (i) substantially all the property of which is located, or substantially all the business of which is carried on, within the United States of America, (ii) which owns a Principal Property and (iii) which has Stockholders' Equity exceeding 2% of Consolidated Net Tangible Assets of the Guarantor. "Stockholders' Equity" means, with respect to any Person, stockholders' equity, as computed in accordance with generally accepted accounting principles. "Subsidiary" means a corporation more than 50% of the outstanding Voting Stock of which is owned, directly or indirectly, by the Guarantor or by one or more other Subsidiaries, or by the Guarantor and one or more other Subsidiaries. -3- ARTICLE TWO Guarantee SECTION 2.01. Unconditional Guarantee The Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated by the Trustee and to the Trustee and its successors and assigns that: the principal of, premium thereon (if any) and interest on each series of Securities will be promptly paid in full when due, subject to any applicable grace period, whether at maturity, by acceleration or otherwise, and interest on the overdue principal and interest on any overdue interest on each series of Securities and all other obligations of the Company to the Holders or the Trustee hereunder or under the Indenture or such series of Securities will be promptly paid in full or performed, all in accordance with the terms hereof and thereof. The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of each series of Securities of the Indenture or any series of Securities, the absence of any action to enforce the same, any waiver or consent by any Holder of the Indenture of any series of Securities with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require proceeding first against the Company, protest, notice and all demands whatsoever and covenants that the Guarantee will not be discharged except by complete performance of the obligations contained in the Indenture and each series of Securities. If any Holder or the Trustee is required by any court or otherwise to return to the Company or the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantor, any amount paid by the Company or Guarantor to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. SECTION 2.02. Execution of Guarantee To further evidence the Guarantee to the Holders, the Guarantor hereby agrees to execute a Guarantee substantially in the form of Exhibit A hereto, to be endorsed on and made a part of each Security ordered to be authenticated and delivered by the Trustee. The Guarantor hereby agrees that its Guarantee set forth in Section 2.01 shall remain in full force and effect notwithstanding any failure to endorse on each Security a Guarantee. Each such Guarantee shall be signed on behalf of the Guarantor by its Chairman of the Board, its President or one of its Vice Presidents prior to the authentication of the Security on which it is endorsed, and the delivery of such Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of such Guarantee on behalf of the Guarantor. Such signature upon the Guarantee may be a manual or facsimile signature of such officer and may be imprinted or otherwise reproduced on the Guarantee, and in case such officer who shall have signed the Guarantee shall cease to be such officer before the Security on which Guarantee is endorsed shall have been authenticated and delivered by the Trustee or disposed of by the -4- Company, the Security nevertheless may be authenticated and delivered or disposed of as though the Person who signed the Guarantee had not ceased to be such officer of the Guarantor. SECTION 2.03. Subordination of Subrogation and Other Rights The Guarantor hereby agrees that any claim against the Company that arises from the payment, performance or enforcement of the Guarantor's obligations under the Guarantee or the Indenture, including, without limitation, any right of subrogation, shall be subject and subordinate to, and no payment with respect to any such claim of the Guarantor shall be made before, the payment in full in cash of all outstanding Securities of each series in accordance with the provisions provided therefor in the Indenture. ARTICLE THREE CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE SECTION 3.01. Guarantor May Consolidate, Etc., Only on Certain Terms The Guarantor shall not consolidate with or merge into any other Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, unless: (1) in case the Guarantor shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Guarantor substantially as an entirety shall be a corporation, partnership, limited liability company or trust organized and existing under the laws of the United States of America, any state thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the Guarantee and the performance of every covenant of this Agreement on the part of the Guarantor to be performed or observed; (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, shall have occurred and be continuing; and (3) the Guarantor has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if an amendment to this Agreement is required in connection with such transaction, such amendment comply with this Article Three and that all conditions precedent herein provided for relating to such transaction have been complied with. -5- SECTION 3.02. Successor Corporation Substituted Upon any consolidation or merger by the Guarantor with or into any other Person or any conveyance, transfer or lease of the properties and assets of the Guarantor substantially as an entirety to any Person in accordance with Section 3.01, the successor corporation, partnership, limited liability company or trust formed by such consolidation or into which the Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Agreement with the same effect as if such successor corporation had been named as the Guarantor herein, and thereafter, except in the case of a lease to another Person, the predecessor corporation shall be relieved of all obligations and covenants under this Agreement and the Guarantee. SECTION 3.03. Assignment to the Guarantor of the Company's Obligations It is acknowledged that, pursuant to Section 8.03 of the Indenture, the Company may assign its obligations under any series of Securities and the Indenture to the Guarantor or any Subsidiary of the Guarantor in accordance with Section 8.03 and, if the Company assigns its obligations to the Guarantor in accordance with Section 8.03 with respect to any series of Securities, all Guarantees of outstanding Securities of such series shall automatically terminate and be discharged. ARTICLE FOUR AMENDMENTS SECTION 4.01. Amendments Without Consent of Holders Without the consent of any Holders, the Guarantor, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more agreements, in form satisfactory to the Trustee, for any of the following purposes: (1) to evidence the succession of another corporation to the Guarantor and the assumption by any such successor of the covenants of the Guarantor herein; or (2) to add to the covenants of the Guarantor for the benefit of the Holders of all or any series of Securities, or to surrender any right or power herein conferred upon the Guarantor; or (3) to secure the Securities; or (4) to cure any ambiguity, to correct or supplement any provision herein which may be inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Agreement; provided such action shall not adversely affect the interests of the Holders in any material respect. -6- SECTION 4.02. Amendments With Consent of Holders With the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of all series affected by such amendment (each such series voting as a separate class), by Act of said Holders delivered to the Guarantor and the Trustee, the Guarantor, when authorized by a Board Resolution, and the Trustee may enter into an amendment to this Agreement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or of modifying in any manner the rights of the Holders of Securities of such series under this Agreement; provided, however, that no such amendment shall, without the consent of the Holder of each outstanding Security affected thereby, (1) modify Article Two or the definitions used in Article Two in a manner which adversely affects the Holders of Outstanding Securities in any material respect, or (2) modify any of the provisions of this Section 4.02, except to increase any such percentage or to provide that certain other provisions of this Agreement cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby. An amendment that changes or eliminates any covenant or other provision of this Agreement which has expressly been included solely for the benefit of one or more particular series of Securities, or that 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 Agreement of the Holders of Securities of any other series. It shall not be necessary for any Act of Holders under this Section 4.02 to approve the particular form of any proposed amendment, but it shall be sufficient if such Act shall approve the substance thereof. SECTION 4.03. Execution of Amendments In executing any amendment permitted by this Article Four, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement. The Trustee may, but shall not be obligated to, enter into any such amendment which affects the Trustee's own rights, duties or immunities under this Agreement or otherwise. SECTION 4.04. Effect of Amendments Upon the execution of any amendment under this Article Four, this Agreement shall be modified in accordance therewith, and such amendment shall form a part of this Agreement for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. -7- SECTION 4.05. Conformity With Trust Indenture Act Every amendment executed pursuant to this Article Four shall conform to the requirements of the Trust Indenture Act as then in effect. SECTION 4.06. Reference in Guarantees to Amendments The Guarantees endorsed on Securities authenticated and delivered after the execution of any amendment pursuant to this Article Four may, and shall, if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such amendment. If the Guarantor shall so determine, new Securities so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such amendment may be prepared and executed by the Guarantor and authenticated and delivered by the Trustee in exchange for Outstanding Securities. ARTICLE FIVE COVENANTS SECTION 5.01. Money for Security Payments To Be Held in Trust If the Guarantor shall at any time act as Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (or premium, if any) or interest, if any, on any of the securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act. SECTION 5.02. Limitation on Liens The Guarantor will not itself, and will not permit any Restricted Subsidiary to, incur, issue, assume or guarantee any Debt secured after the date hereof by pledge of, or mortgage or lien on (herein referred to as "Lien"), any Principal Property of the Guarantor or any Restricted Subsidiary or any shares of Capital Stock of or Debt of any Restricted Subsidiary, without effectively providing that the Securities (together with, if the Guarantor shall so determine, any other Debt of the Guarantor or such Restricted Subsidiary then existing or thereafter created which is not subordinate to the Securities) shall be secured equally and ratably with (or, at the option of the Guarantor, prior to) such secured Debt, so long as such secured Debt shall be so secured, unless, after giving effect thereto, the aggregate amount of all such secured Debt of the Guarantor and the Restricted Subsidiaries, would not at that time exceed 10% of Consolidated Net Tangible Assets; provided, however, that this Section 10.04 shall not apply to, and there shall be excluded from secured Debt in any computation under this Section 10.04, Debt secured by: (1) Liens on any property or any interest therein, construction thereon or improvement thereto to secure all or any part of the costs incurred after the date hereof for -8- surveying, exploration, drilling, mining or other extraction, development, construction, alteration, repair or improvement of, in, under or on such property or to secure Debt incurred to provide funds for any such purpose (it being understood that, in the case of oil, gas or mineral properties, or interests therein, costs incurred after the date hereof for "development" shall include costs incurred for all facilities relating to such properties or to projects, ventures or other arrangements of which such properties form a part or which relate to such properties or interests, which facilities may include, without limitation, any drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements; (2) Liens or the creation of encumbrances on an oil and/or gas or mineral producing property to secure obligations incurred or guarantees of obligations incurred in connection with or necessarily incidental to commitments of purchase or sale of, or the transportation or distribution of, the products derived from such property; (3) Liens on drilling equipment, production equipment and platforms or mining equipment, pipelines, pumping stations or other pipeline facilities; terminals or warehouses or storage facilities; bulk plants; production, separation, dehydration, extraction, treating and processing facilities; gasification or gas liquefying facilities, flares, stacks or burning towers; flotation mills, crushers and ore handling facilities; tank cars, tankers, barges, ships, trucks, automobiles, airplanes or other marine, automotive, aeronautical or other similar moveable facilities or equipment; computer systems and associated programs or office equipment; roads, airports and docks (including drydocks); reservoirs or waste disposal facilities; sewers, generating plants or electric lines; telephone and telegraph lines, radio and other communications facilities; townsites, housing facilities, recreation halls, stores and other related facilities; real and personal property used primarily for purposes other than those of Principal Properties; and similar facilities and equipment of or associated with any of the foregoing, whether or not in whole or in part located or from time to time located at or on such properties, projects, ventures or the situs of such other arrangements; (4) Liens on property existing at the time of acquisition of such property or mortgages to secure the payment of all or any part of the purchase price of such property or to secure any Debt, incurred prior to, at the time of or within 24 months after the ac- -9- quisition of such property for the purpose of financing all or any part of the purchase price thereof; (5) Liens (a) in favor of the United States of America or any State thereof, or any other country, or any municipality therein or any political subdivision, department, agency or instrumentality of any of them to secure moneys borrowed from or by such authorities, whether or not such moneys are borrowed or the repayment thereof is guaranteed by the Guarantor or by a Restricted Subsidiary, including, without limitation, Liens to secure Debt issued, assumed or guaranteed in pollution control or industrial revenue bond financings, or (b) to secure the performance of any covenant or obligation to or in favor of or entered into at the request of such authorities where such security is required pursuant to any contract, order, direction, regulation or statute; (6) Liens in existence prior to the date hereof; (7) Liens by any Restricted Subsidiary pursuant to the terms of any trust deed or similar document entered into by such Restricted Subsidiary, or by a predecessor of such Restricted Subsidiary, prior to the date when it became a Subsidiary; (8) Liens existing on any of the properties of, or on any shares of Capital Stock or Debt of, a corporation (including, but not limited to, a Restricted Subsidiary) at the time when such corporation becomes a Subsidiary or is consolidated with or merged into the Guarantor or a Subsidiary or Liens existing upon property, Capital Stock or Debt at the time of acquisition thereof; (9) Liens which secure only indebtedness owing by a Subsidiary to the Guarantor or by a Subsidiary or the Guarantor to a Subsidiary; (10) any extension, renewal or replacement (or successive extensions, renewals or replacements), as a whole or in part, of any Lien referred to in the foregoing clauses (1) to (9) inclusive, so long as such extension, renewal or replacement of such Lien is limited to all or any part of the same property, shares of Capital Stock or Debt that secured the Lien extended, renewed or replaced (plus improvements on such property); (11) pledges or deposits under workmen's compensation, unemployment insurance or similar statutes, mechanics', workmen's, repairmen's, materialmen's, carriers' or other similar Liens arising in the ordinary course of business or deposits or pledges to obtain the release of any such Liens; (12) Liens (a) created by or resulting from any litigation or other proceedings, including Liens arising out of judgments or awards against the Company or any Restricted Subsidiary, with respect to which the Guarantor or such Restricted Subsidiary is in good faith prosecuting an appeal or proceeding for review, or (b) incurred by the Guarantor or any Restricted Subsidiary for the purpose of obtaining a stay or discharge -10- in the course of any legal proceeding to which the Guarantor or such Restricted Subsidiary is a party; (13) Liens for taxes or assessments or governmental charges or levies not yet due or delinquent, or which can thereafter be paid without penalty, or which are being contested in good faith by appropriate proceedings, landlord's Liens on property held under lease, and other Liens of a nature similar to those hereinabove described in this clause (13) which do not, in the opinion of the Guarantor or such Restricted Subsidiary, materially impair the use of such property in the operation of the business of the Guarantor or such Restricted Subsidiary or the value of such property for the purpose of such business; (14) easements, rights-of-way, restrictions and other similar charges or encumbrances not interfering with the ordinary conduct of the business of the Guarantor or any Restricted Subsidiary; and (15) Liens secured by pipeline assets of El Paso Natural Gas Company; and provided, further, that the following types of transactions, among others, shall not be deemed to create Debt secured by a Lien: the sale (including any forward sale) or other transfer of (i) oil, gas, gold or other minerals, whether in place or when produced, for a period of time until, or in an amount such that, the purchaser will realize therefrom a specified amount of money (however determined) or a specified amount of such minerals, or (ii) any other interest in property of the character commonly referred to as a "production payment, "ore payment", "royalty interest", "overriding royalty interest", or "mineral payment", or farmouts, the creation of working interest, joint operating or unitization agreements, or other similar transactions. SECTION 5.03. Waiver of Certain Covenants The Guarantor may omit in any particular instance to comply with any covenant or condition set forth in Section 5.02 if, before or after the time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Securities of each series shall, by notice to the Trustee, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Guarantor and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. SECTION 5.04. Reports by Guarantor (a) The Guarantor shall file with the Trustee, within 15 days after the Guarantor is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Guarantor is required to file with -11- the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended and shall otherwise comply with Section 314(a) of the Trust Indenture Act. (b) The Guarantor shall furnish to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of the Guarantor's compliance with all conditions and covenants under this Agreement. For purposes of this paragraph (b), such compliance shall be determined without regard to any period of grace or requirement of notice provided under this Agreement. ARTICLE SIX MISCELLANEOUS SECTION 6.01. Trust Indenture Act The Guarantor understands that this Agreement is to be qualified under the Trust Indenture Act and any provision of the Indenture required by the Trust Indenture Act is hereby incorporated by reference. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Agreement by any of the provisions of the Trust Indenture Act, such required provision shall control. If any provision of this Agreement modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Agreement as so modified or to be excluded, as the case may be. SECTION 6.02. Effect of Headings and Table of Contents The Article and Section headings herein are for convenience only and shall not affect the construction hereof. SECTION 6.03. Successors and Assigns All covenants and agreements in this Agreement by the Guarantor shall bind its successors and assigns, whether so expressed or not. SECTION 6.04. Separability Clause In case any provision in this Agreement or in the Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. SECTION 6.05. Benefits of Agreement Nothing in this Agreement or in the Guarantee, express or implied, shall give to any Person, other the Guarantor and its successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Agreement. -12- SECTION 6.06. Governing Law This Agreement and the Guarantee shall be governed by and construed in accordance with the laws of the State of New York. SECTION 6.07. Notices, Etc., to the Guarantor Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with the Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Guarantor addressed to it at the address of its principal office specified in the first paragraph of this Agreement or at any other address previously furnished in writing to the Trustee by the Guarantor, Attention: Assistant Treasurer. IN WITNESS WHEREOF, the Guarantor has duty executed this Agreement as of the date first above written. BURLINGTON RESOURCES INC., as Guarantor By: ---------------------------------------------- Name: Title: Agreed and Accepted: CITIBANK, N.A., as Trustee under the Indenture By: ---------------------------------------------- Name: Title: EX-4.3 5 0005.txt FORM OF SENIOR DEBT SECURITY THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS GLOBAL NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR. Cusip No. BURLINGTON RESOURCES FINANCE COMPANY 6.68% NOTES DUE FEBRUARY 15, 2011 Rate of Interest Maturity Date Original Issue Date ---------------- ------------- ------------------- 6.68% February 15, 2011 February 12, 2001 No. $ Burlington Resources Finance Company, an unlimited liability company organized and existing under the laws of Nova Scotia, Canada (herein called the "Company"), for value received, hereby promises to pay to Cede & Co. or registered assigns, the principal sum of $[ ] on the Maturity Date shown above, and to pay interest thereon, at the annual rate of interest shown above, from the Original Issue Date shown above or from the most recent Interest Payment Date (as hereinafter defined) to which interest has been paid or duly provided for, payable semiannually on February 15 and August 15 of each year and at maturity (an "Interest Payment Date"), commencing on the first such date after the Original Issue Date shown above. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date or within five days thereafter will, as provided in the Indenture, be paid to the person in whose name this Note is registered at the close of business on the Record Date for any such Interest Payment Date, which shall be the February 1 or August 1 next preceding the applicable Interest Payment Date (whether or not a Business Day). Any such interest not so punctually paid or duly provided for, and any interest payable on such defaulted interest (to the extent lawful), will forthwith cease to be payable to the Holder on such Record Date and shall be paid to the person in whose name this Note is registered at the close of business on a special record date for the payment of such defaulted interest to be fixed by the Trustee, notice of which shall be given to Holders of Notes not less than ten days prior to such special record date. Payment of the principal of (and premium, if any) and interest on this Note will be made at the office of the Trustee, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts; provided, however, that, at the option of the Company, payment of any installment of interest may be made by check mailed to the address of the person entitled thereto as such address shall appear in the Securities Register or by wire transfer to an account maintained by the person entitled thereto as specified in the Securities Register, provided that such person shall have given the Trustee appropriate and timely written wire instructions. REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose. IN WITNESS WHEREOF, Burlington Resources Finance Company has caused this instrument to be executed in its corporate name by the facsimile signature of its duly authorized officers and has caused a facsimile of its corporate seal to be affixed hereunto or imprinted hereon. BURLINGTON RESOURCES FINANCE COMPANY By: ------------------------------------------ Name: Title: ATTEST: By: ------------------------------------------ Name: Title: DATED: February 12, 2001 TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is one of the 6.68% Notes due February 15, 2011 issued pursuant to the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: -------------------------------------- Authorized Signatory Dated: BURLINGTON RESOURCES FINANCE COMPANY 6.68% NOTES DUE FEBRUARY 15, 2011 This Note is one of a duly authorized issue of Notes of the Company (which term includes any successor Person under the Indenture herein referred to) designated as its 6.68% Notes due February 15, 2011 (the "Notes"), issued or to be issued pursuant to an Indenture, dated as of February 12, 2000 (the "Indenture"), between the Company and Citibank N.A., as Trustee (the "Trustee," which term includes any successor trustee under theS Indenture). The Notes shall be fully and unconditionally guaranteed by Burlington Resources Inc., a Delaware corporation (the "Guarantor"), pursuant to a Guarantee Agreement dated as of February 12, 2001 by the Guarantor in favor of the holders of Notes. The terms of this Note include those stated in the Indenture and in the Officers' Certificate issued thereunder and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as in effect on the date of the Indenture. Reference is hereby made to the Indenture and the applicable officers' certificate issued thereunder for a statement of the respective rights, limitation of rights, duties and immunities thereunder of the Company, the Trustee and the Holders and of the terms upon which the Notes are, and are to be, authenticated and delivered. The Notes are a series of Securities issued or to be issued by the Company under the Indenture, and this Series is limited in aggregate principal amount to $400,000,000. The Indenture provides that the Securities of the Company referred to therein ("Securities"), may be issued in one or more Series, which different Series may be issued in such aggregate principal amounts and on such terms (including, but not limited to, terms relating to interest rate or rates, provisions for determining such interest rate or rates and adjustments thereto, maturity, redemption (optional and mandatory), covenants and Events of Default) as may be provided in the officers' certificates or supplemental indentures relating to the several Series. The Notes are subject to redemption upon not less than 30 nor more than 60 days' notice by mail, in whole or in part, at the option of the Company at any time at a redemption price equal to the greater of (i) 100% of the principal amount of such Notes plus accrued and unpaid interest to the redemption date or (ii) the sum of the present values of the remaining scheduled payments of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the redemption date on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 20 basis points plus accrued and unpaid interest thereon to the redemption date. "Treasury Rate" means, with respect to any redemption date, (i) the yield, under the heading which represents the average for the immediately preceding week, appearing in the most recently published statistical release designated "H.15(519)" or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption "Treasury Constant Maturities," for the maturity corresponding to the Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life, yields for the two published maturities most closely corresponding to the Cornparable Treasury Issue shall be determined and the -2- Treasury Rate shall be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month) or (ii) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date. "Business Day" means any calendar day that is not a Saturday, Sunday or legal holiday in New York, New York and on which commercial banks are open for business in New York, New York. "Comparable Treasury Issue" means the United States Treasury security selected by an Independent Investment Banker as having a maturity comparable to the remaining term ("Remaining Life") of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Notes. "Comparable Treasury Price" means, with respect to any redemption date, (A) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Independent Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such Quotations. "Independent Investment Banker" means Salomon Smith Barney Inc. or if such firm is unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Trustee. "Reference Treasury Dealer" means (i) each of Salomon Smith Barney Inc., and three other primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer") and their respective successors, provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer and (ii) any other Primary Treasury Dealer selected by the Company. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 5:00 p.m. on the third Business Day preceding such redemption date. If an Event of Default shall occur and be continuing, the principal of all the Notes may be declared due and payable in the manner and with the effect provided in the Indenture. The Indenture provides that the Trustee or Holders of at least 25% in principal amount of the Securities of the applicable series may declare the applicable series to be immediately due and payable. However, upon certain conditions such declarations may be annulled and past defaults may be waived. -3- The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Notes under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the Securities affected thereby, voting as a single class (which may include the Notes), at the time outstanding. The Indenture also contains provisions permitting the Company and the Trustee to amend certain provisions of the Indenture without the consent of the Holders of the Securities. No reference herein to the Indenture or the Officers' Certificate and no provision of this Note or of the Indenture or the Officers' Certificate shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the times, places and rates, and in the coin or currency, herein prescribed. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Securities Register upon surrender of this Note for registration of transfer at the agency of the Company provided for that purpose duly endorsed by, or accompanied by a written instrument of transfer in substantially the form accompanying this Note duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees. The Notes are issuable only in registered form without coupons in denominations of $1,000 and any integral multiple thereof. As provided in the Indenture and subject to certain limitations set forth therein and on the face of this Note, the Notes are exchangeable for a like aggregate principal amount of Notes of a different authorized denomination, as requested by the Holder surrendering the same. No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to the Indenture in which case such transfer taxes or similar governmental charges shall be paid by the Company). Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary. All terms used in this Note which are defined in the Indenture or the Officers' Certificate shall have the meanings assigned to them therein. Customary abbreviations may be used in the name of a Note holder or any assignee, such as: TEN COM (= tenants in common), TEN ENT(= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian) and U/G/M/A (Uniform Gifts to Minors Act). -4- The Company will furnish to any Holder of record of a Note, upon written request, without charge, a copy of the Indenture. Requests may be made to: Vice President and Assistant Treasurer, Burlington Resources Finance Company, c/o Burlington Resources Canada Energy Ltd., Suite 3700, 250-6th Avenue, S.W., Calgary, Alberta T2P 3H7, telephone: (403) 260-8000. ASSIGNMENT FORM If you the Holder want to assign this Note, fill in the form below and have your signature guaranteed: I or we assign and transfer this Note to: - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- (Print or type name, address and zip code and social security or tax ID number of assignees) and irrevocably appoint _______________________________________________________ agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. Dated: Signed: ------------------------------ -------------------------------- -------------------------------- (Sign exactly as name appears on the other side of the Note) Signature Guarantee: ------------------------------------------------------------ NOTICE: Signature(s) must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company. [FORM OF GUARANTEE] GUARANTEE The undersigned Guarantor (capitalized terms used herein have the meanings given such terms in the Indenture referred to in the Note upon which this notation is endorsed) hereby unconditionally guarantees (such guarantee being referred to herein as the "Guarantee") the due and punctual payment of the principal of, premium, if any, and interest on the 6.68% Notes due February 12, 2011 (the "Notes") which this Guarantee accompanies, whether at maturity, by acceleration or otherwise, the due and punctual payment of interest on the overdue principal, premium and interest on the Notes, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee, all in accordance with the terms set forth in Article Two of the Guarantee Agreement. This Guarantee shall not be valid or obligatory for any purpose until the certificate of authentication on the Notes upon which this Guarantee is noted shall have been executed by the Trustee under the Indenture by the manual signature of one of its authorized officers. This Guarantee shall be governed by and construed in accordance with the laws of the State of New York. This Guarantee is subject to release upon the terms set forth in the Guarantee Agreement. BURLINGTON RESOURCES INC. By: --------------------------------------------- Name: Title: EX-5.1 6 0006.txt OPINION OF CAHILL GORDON & REINDEL February 7, 2001 Burlington Resources Inc. 5051 Westheimer, Suite 1400 Houston, TX 77056-2124 Burlington Resources Finance Company c/o Burlington Resources Canada Energy Ltd. Suite 3700, 250 - 6th Avenue, S.W. Calgary, Alberta T2P 3H7 Canada Re: $ 400 Million Aggregate Principal Amount of Debt Securities Ladies and Gentlemen: We have acted as special U.S. counsel to Burlington Resources Finance Company (the "Company") and Burlington Resources Inc. (the "Guarantor") in connection with the filing of a Registration Statement on Form S-3 (the "Registration Statement") under the Securities Act of 1933, as amended (the "Act") and the proposed issuance of $400 million aggregate principal amount of 6.680% Notes due February 15, 2011 (the "Securities") of the Company to be issued under the Indenture between the Company and Citibank, N.A., as Trustee, dated as of February 12, 2001 (the "Indenture") as well as the proposed guarantee by the Guarantor under the guarantee agreement by the Guarantor in favor of the holders of the Securities and the Trustee, dated as of February 12, 2001 (the "Guarantee Agreement") providing for the guarantee (the "Guarantee"). We have examined such corporate records, documents, certificates and instruments as we deemed necessary and appropriate to enable us to render the opinion expressed below. -2- We advise you that, in our opinion: (a) Assuming that the Securities have been duly authorized by the Company, when such Securities have been executed and authenticated in accordance with the terms of the Indenture and delivered to the purchasers thereof against payment thereof in the manner described in the Registration Statement, including the prospectus dated February 7, 2001 forming a part thereof (the "Prospectus"), such Securities will be legally issued and will constitute valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization or other laws of general applicability related to or affecting creditors' rights and to general principles of equity. (b) The Guarantee has been duly authorized and, upon execution of the Guarantee in accordance with the Guarantee Agreement and attachment to the Securities, will be legally issued and a valid and binding obligation of the Guarantor entitled to the benefits of the Guarantee Agreement and enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or transfer, reorganization or other laws of general applicability relating to or affecting creditors' rights and to general principles of equity. In rendering the opinion set forth above, we express no opinion as to the laws of any jurisdiction other than the General Corporation law of the State of Delaware, including the applicable provisions of the Delaware Constitution and the reported judicial decisions interpreting the laws, and the federal laws of the United States of America. We hereby consent to the incorporation by reference of this opinion as an exhibit to the Registration Statement and to the reference of our firm under the caption "Legal Matters" in the Registration Statement and related Prospectus. Our consent to such reference does not constitute a consent under Section 7 of the Act, as in consenting to such reference we have not certified any part of the Registration Statement and do not otherwise come within the categories of persons whose consent is required under Section 7 or under the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /s/ Cahill Gordon & Reindel ---------------------------------- EX-5.2 7 0007.txt OPINION OF STEWART MCKELVEY February 7, 2001 Page
Suite 900 Correspondence: Telephone: 902.420.3200 Charles S. Reagh Purdy's Wharf Tower One P.O. Box 997 Fax: 902.420.1417 Direct Dial:902.420.3335 1959 Upper Water Street Halifax, NS halifax@smss.com Direct Fax: 902.496.6173 Halifax, NS Canada B3J 2X2 www.smss.com csr@smss.com Canada B3J 3N2
File Reference: NS267-142 February 7, 2001 BURLINGTON RESOURCES FINANCE COMPANY c/o Burlington Resources Canada Energy Ltd. Suite 3700, 250-6th Avenue S.W. Calgary, AB T2P 3H7Dear Sirs: Re: Burlington Resources Finance Company (the "Company") - Issue of 6.680% Notes Due 2011 We have acted as special Nova Scotia counsel to the Company in connection with the creation, issue and sale by the Company of U.S. $400,000,000 principal amount of 6.680% notes due 2011 (the "Offered Securities") pursuant to a Form S-3 Registration Statement (the "Registration Statement"), filed with the United States Securities and Exchange Commission. The Offered Securities will be issued pursuant to the provisions of an indenture (the "Indenture") between the Company and Citibank, NA, as trustee. We have considered such questions of law and examined such statutes, public and corporate records, certificates of governmental authorities and officers of the Company, including a certificate of the Vice President and Assistant Secretary on behalf of the Company dated February 7, 2001 (the "Officer's Certificate"), and other documents and conducted such other examinations as we have considered necessary or desirable to enable us to express the opinions hereinafter set forth. In such examination we have assumed the legal capacity of all individuals, the veracity of the information contained in the documents, the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to authentic original documents of all documents submitted to us as certified, conformed, facsimile or photostatic copies of original documents. In stating our opinions, we have also assumed a. the completeness, truth and accuracy of all facts set forth in official public records and certificates and other documents supplied by public officials; and February 7, 2001 Page a. the completeness, truth and accuracy of all statements of fact contained in the Officer's Certificate. February 7, 2001 Page We are solicitors qualified to practice law in the Province of Nova Scotia and we express no opinion as to any laws or any matters governed by any laws other than the laws of the Province of Nova Scotia and the federal laws of Canada applicable therein. As to various questions of fact material to our opinion, which we have not verified independently, we have relied upon documents or certificates of governmental authorities and the Company or its officers. In expressing the opinion in paragraph (a) with respect to the valid existence of the Company, we have relied exclusively on a Certificate of Status issued under the Companies Act (Nova Scotia) dated on February o, 2001, a copy of which has been provided to you. On the basis of the foregoing we are of the opinion that: (a) The Company has been duly incorporated, is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation (b) Subject to the execution and delivery of the Indenture by the Company, the Offered Securities have been duly authorized by the Company. Consent is hereby given to the filing, as an exhibit to the Registration Statement, of this letter. In giving such consent we do not admit that we come within the category of persons whose consent is required under Section 7 of the United States Securities Act of 1933. Yours truly, /s/ STEWART MCKELVEY STIRLING SCALES --------------------------------------------- EX-8.1 8 0008.txt OPINION OF WHITE & CASE February 7, 2001 Burlington Resources Inc. 5051 Westheimer Houston, TX 77056-2124 Re: 6.680% Notes due February 15, 2011 Ladies and Gentlemen: We have acted as special United States tax counsel to Burlington Resources Inc. ("Burlington Resources"), a corporation organized under the laws of Delaware, and Burlington Resources Finance Company, an unlimited liability company organized under the laws of Nova Scotia, Canada, in connection with the issuance by Burlington Resources Finance Company of the 6.680% Notes due February 15, 2011 (the "Notes"), which are irrevocably and unconditionally guaranteed by Burlington Resources. At your request, we are rendering our opinion concerning the principal United States federal income tax consequences regarding the issuance of the Notes. In connection therewith, we reviewed copies of the Registration Statement (as defined below), as well as the related forms of the Indenture, Guarantee Agreement, and Note which will be incorporated by reference into the Registration Statement by the filing of a Form 8-K on the date hereof containing such exhibits. This opinion letter is based on the Internal Revenue Code of 1986, as amended, the Treasury Regulations issued thereunder and administrative and judicial interpretations thereof, in each case, as in effect and available on the date hereof. We assume that the obligations contained in the operative documents for the Notes described in the Prospectus and the Prospectus Supplement forming a part of the Registration Statement to which this opinion relates and is incorporated by reference (the "Registration Statement") will be performed in accordance with the terms described therein. Based on the foregoing and subject to the assumptions, qualifications and limitations contained therein, we hereby confirm our opinion contained in the Prospectus Supplement under the caption "United States Federal Income Tax Considerations." We have not considered and render no opinion on any aspect of law other than as expressly set forth above. We hereby consent to the filing of this opinion as an exhibit to a Form 8-K to be incorporated by reference into the Registration Statement and the reference to us under the caption "United States Federal Income Tax Considerations" in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. Very truly yours, /s/ White & Case LLP -------------------------- JWD:SGW -2- EX-8.2 9 0009.txt OPINION OF BENNETT JONES LLP C. Michael Ryer Direct Line: (403) 298-3219 e-mail: ryerm@bennettjones.ca February 7, 2001 Burlington Resources Inc. 5051 Westheimer, Suite 1400 Houston, TX 77056-2124 Burlington Resources Finance Company 3700, 250 - 6 Avenue SW Calgary, Alberta T2P 3H7 Ladies and Gentlemen: Re: 6.68% Notes due February 15, 2011 We have acted as special Canadian tax counsel to Burlington Resources Inc. ("Burlington Resources"), a corporation organized under the laws of Delaware, U.S.A., and Burlington Resources Finance Company ("Burlington Finance"), an unlimited liability company organized under the laws of Nova Scotia, Canada, in connection with the issuance by Burlington Finance of the 6.68% Notes, due February 15, 2011 (the "Notes"), which are irrevocably and unconditionally guaranteed by Burlington Resources. At your request, we are rendering our opinion concerning the principal Canadian federal income tax consequences to purchasers of the Notes. In connection therewith, we reviewed copies of the Registration Statement (as defined below), as well as the related forms of the Indenture, the Guarantee Agreement, and the Note incorporated by reference as exhibits into the Registration Statement by the filing of a Form 8-K on the date hereof containing such exhibits. Our opinion is based on the current provisions of the Income Tax Act (Canada) (the "ITA") and the regulations thereunder, our understanding of the current assessing and administrative practices of Canada Customs and Revenue Agency ("CCRA") and all specific proposals to amend the ITA and the regulations thereunder which have been publicly announced by the Minister of Finance (Canada) before the date hereof. Our opinion does not otherwise take into account or anticipate changes in the law or in the assessment and administrative practices of CCRA, whether by judicial, governmental or legislative decision or action, nor does it take into account tax legislation or considerations of any province or territory of Canada or any jurisdiction other than Canada. We assume that the obligations contained in the operative documents for the Notes described in the Prospectus and the Prospectus Supplement forming a part of the Registration Statement to which our opinion relates and is incorporated by reference (the "Registration Statement") will be performed in accordance with the terms described therein. Based on the foregoing and subject to the assumptions, qualifications and limitations contained therein, we hereby confirm our opinion contained in the Prospectus Supplement under the caption "Canadian Federal Income Tax Considerations." We have not considered and render no opinion on any aspect of law other than as expressly set forth above. We hereby consent to the filing of this opinion as an exhibit a Form 8-K to be incorporated by reference into the Registration Statement and the reference to our firm under the caption "Canadian Federal Income Tax Considerations" in the Registration Statement as well as under the caption " Legal Matters" in the Prospectus and Prospectus Supplement included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended. Yours very truly, /s/ Bennett Jones LLP ------------------------------------ EX-10.1 10 0010.txt FIRST AMENDMENT - SHORT-TERM Burlington Resources Inc. Amendment January 17, 2000 The undersigned institution, under the Short-Term Revolving Credit Agreement dated as of February 25, 1998, as amended and restated as of February 23, 1999 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among BURLINGTON RESOURCES INC., a Delaware corporation (the "Borrower"), the financial institutions (the "Lenders") listed on the signature pages thereof, Chase Bank of Texas, N.A., as administrative agent (in such capacity, the "Administrative Agent") for the Lenders thereunder, The Chase Manhattan Bank as auction administrative agent for the Lenders (in such capacity, the "Auction Administrative Agent"), Citibank, N.A., as syndication agent for the Lenders (in such capacity, the "Syndication Agent"), and Bank of America, N.A. (f/k/a Bank of America National Trust and Savings Association) and BankBoston, N.A., as documentation agents for the Lenders (in such capacity, individually, a "Documentation Agent" and, collectively, the "Documentation Agents"), hereby agrees to the Extension and the amendment of the term "Stated Termination Date" described in the Memorandum for Bank Group dated January 6, 2000. BURLINGTON RESOURCES INC. by /S/ SUZANNE V. BAER ---------------------- Name: Suzanne V. Baer Title: Vice President and Treasurer MEMORANDUM FOR BANK GROUP To: Burlington Resources Lenders From: Chase Securities Inc. Re: Burlington Resources Inc. Short-Term Revolving Credit Agreement Date: January 6, 2000 Reference is made to the Short-Term Revolving Credit Agreement dated as of February 25, 1998, as amended and restated as of February 23, 1999 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among BURLINGTON RESOURCES INC., a Delaware corporation (the "Borrower"), the financial institutions (the "Lenders") listed on the signature pages thereof, Chase Bank of Texas, N.A., as administrative agent (in such capacity, the "Administrative Agent") for the Lenders thereunder, The Chase Manhattan Bank, as auction administrative agent for the Lenders (in such capacity, the "Auction Administrative Agent"), Citibank, N.A., as syndication agent for the Lenders (in such capacity, the "Syndication Agent"), and Bank of America, N.A. (f/k/a Bank of America National Trust and Savings Association) and BankBoston, N.A., as documentation agents for the Lenders (in such capacity, individually, a "Documentation Agent" and, collectively, the "Documentation Agents"). Capitalized terms used but not defined herein have the meanings given in the Credit Agreement. The Borrower is seeking the Lenders' approval to extend the Stated Termination Date from February 21, 2000 to March 31, 2000 (the "Extension") in order to allow the Borrower to provide consolidated financials that include the operations of Poco Petroleums, Ltd. ("Poco"), an acquisition that was completed by the Borrower on November 18, 1999. Concurrent with the extension of the Borrower's US credit facilities, the Borrower plans to refinance Poco's existing Canadian credit facilities. Chase supports the Borrower's request for the Extension. To indicate your agreement to the Extension, please make four (4) photocopies of the amendment and return one of the executed pages to the attention of Chiann Bao by telecopy at 212-474-3700 and send the four originally executed pages to the attention of Chiann Bao at Cravath, Swaine & Moore. Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019-7475. Effective upon receipt of signature pages from each Lender, the Borrower, the Administrative Agent and the Documentation Agents, the definition of "Stated Termination Date" in the Credit Agreement will be amended to read in its entirety as follows: "Stated Termination Date" means March 31, 2000, or such later date as shall be determined pursuant to the provisions of Section 2.21 with respect to non-Objecting Lenders, provided that if such date is not a Business Day, the Stated Termination Date shall be the next preceding Business Day." The Borrower has requested that the foregoing amendment become effective by noon on Monday, January 17, 2000, and your cooperation in meeting this schedule will be appreciated. If you have any questions, please feel free to call Suzanne V. Baer (713/624-9337) at Burlington Resources, or Russ Johnson (713/216-5617), Lee Beckelman (713/216-3558) or Ann Baumgartner (713/216-7582) at Chase. Thank you. EX-10.2 11 0011.txt SECOND AMENDMENT AND RESTATEMENT CONFORMED COPY SECOND AMENDMENT AND RESTATEMENT AGREEMENT dated as of March 31, 2000 (this "Second Amendment and Restatement" or this "Amendment") in respect of the SHORT-TERM REVOLVING CREDIT AGREEMENT dated as of February 25, 1998, as amended and restated pursuant to the Amendment and Restatement Agreement dated as of February 23, 1999, and as further amended as of January 17, 2000 (the "Credit Agreement"), among BURLINGTON RESOURCES INC., a Delaware corporation (the "Borrower"), the financial institutions (the "Lenders") listed on the signature pages thereof, Citibank, N.A., as syndication agent for the Lenders, Chase Bank of Texas, N.A. ("Chase" and, in its capacity as administrative agent for the Lenders, the "Administrative Agent"), The Chase Manhattan Bank, as auction administrative agent for the Lenders (in such capacity, the "Auction Administrative Agent"), and Bank of America, N.A. and Fleet National Bank, as co-documentation agents for the Lenders. The Borrower has advised the Lenders that it desires to (i) amend the Credit Agreement to, among other things, extend the Stated Termination Date thereof an additional 364 days and revise certain pricing terms thereunder, (ii) obtain a new short-term revolving credit facility in the amount of C$500,000,000 (the "Canadian Revolving Credit Agreement") for Burlington Resources Canada Energy Limited, its Canadian subsidiary and (iii) amend its Long-Term Revolving Credit Agreement to reflect the extension of the Credit Agreement and the addition of the Canadian Revolving Credit Agreement (the "Second Long-Term Amendment and Restatement"), and has requested in connection therewith that the Credit Agreement be amended and restated as set forth in Section 1 below and the parties hereto are willing so to amend the Credit Agreement. Each capitalized term used but not defined herein has the meaning assigned thereto in the Credit Agreement. In consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree, on the terms and subject to the conditions set forth herein, as follows: SECTION 1. Amendment and Restatement. Upon the effectiveness of this Second Amendment and Restatement as provided in Section 3 below, the Credit Agreement shall be amended and restated in the form resulting from the following revisions: -2- (a) Addition of Definition of Canadian Revolving Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended by inserting the following definition immediately prior to the definition of "Capitalization": "Canadian Revolving Credit Agreement" means the Short-Term Revolving Credit Agreement dated as of March 31, 2000, among Burlington Resources Canada Energy Ltd., as the borrower, Burlington Resources Inc., as parent, the financial institutions party thereto, Royal Bank of Canada, as administrative agent and co-arranger for such financial institutions, The Chase Manhattan Bank of Canada, as syndication agent and lead arranger for such financial institutions, and The Bank of Nova Scotia, as documentation agent and co-arranger for such financial institutions. (b) Amendment of Definition of Effective Date. The definition of "Effective Date" in Section 1.01 of the Credit Agreement is hereby amended by deleting the reference to "February 23, 1999" and replacing it with the date "March 31, 2000." (c) Extension of Stated Termination Date. The definition of "Stated Termination Date" in Section 1.01 of the Credit Agreement is hereby amended by deleting the reference to "March 31, 2000" and replacing it with the date "March 29, 2001." (d) Extension of Stated Termination Date and Replacement of Lenders. Section 2.21(d) and Section 2.22 of the Credit Agreement are hereby amended by adding the phrase "or the Canadian Revolving Credit Agreement, as the case may be" immediately following each reference to the Long-Term Revolving Credit Agreement in each such Section. (e) Modification of Debt to Capitalization Test. Paragraph (1) of Section 5.02(b) of the Credit Agreement is hereby amended by (i) inserting the phrase "or the Canadian Revolving Credit Agreement" immediately prior to the phrase "or any replacement therefor" and (ii) inserting the phrase "the sum of the unused commitment under the Canadian Revolving Credit Agreement and" immediately following the phrase "shall not exceed" in such paragraph. (f) Amendment of Negative Covenant with Respect to Mergers. Section 5.02(d) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: "(d) Mergers, Etc. Merge, amalgamate or consolidate with any Person, or permit any Material Subsidiary to merge, amalgamate or -3- consolidate with any Person, except that (i) any Subsidiary may merge, amalgamate or consolidate with (or liquidate into) any other Subsidiary or may merge, amalgamate or consolidate with (or liquidate into) the Borrower, provided that (A) if such Subsidiary merges, amalgamates or consolidates with (or liquidates into) the Borrower, either the survivor or successor is the Borrower or such successor or surviving Business Entity is organized and existing under the laws of the United States and expressly assumes the obligations of the Borrower hereunder and under the Notes, (B) if any such Subsidiary merges, amalgamates or consolidates with (or liquidates into) any other Subsidiary of the Borrower, one or more Business Entities that are Subsidiaries of the Borrower are the surviving or successor Business Entity(ies) and, if any such Subsidiary is not directly or indirectly wholly-owned by the Borrower, such merger, amalgamation or consolidation is on an arm's length basis and (C) as a result of such merger, amalgamation or consolidation, no Event of Default, and no event which with lapse of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and be continuing, and (ii) the Borrower or any Material Subsidiary may merge, amalgamate or consolidate with any other Business Entity (that is, in addition to the Borrower or any other Subsidiary), provided that (A) if the Borrower merges, amalgamates or consolidates with any such other Business Entity(ies), the survivor or successor Business Entity is the Borrower, (B) if any Material Subsidiary merges, amalgamates or consolidates with any such other Business Entity, each surviving or successor Business Entity is a directly or indirectly wholly-owned Subsidiary, and (C) if either the Borrower or any Material Subsidiary merges, amalgamates or consolidates with any such other Business Entity, after giving effect to such merger, amalgamation or consolidation no Event of Default, and no event which with lapse of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and be continuing." (g) Cross Default to Canadian Revolving Credit Agreement. Section 6.01(k)of the Credit Agreement is hereby amended by inserting the phrase "or the Canadian Revolving Credit Agreement" immediately following the reference to the Long-Term Revolving Credit Agreement in such Section. (h) Revised Pricing Grid. Schedule II to the Credit Agreement is hereby deleted in its entirety and replaced with Schedule II attached hereto. -4- (i) Conforming References. All references in the Credit Agreement and the Exhibits to agents, to the Credit Agreement and to the Long-Term Revolving Credit Agreement shall be conformed to reflect this Second Amendment and Restatement, the Second Long-Term Amendment and Restatement and the Canadian Revolving Credit Agreement. SECTION 2. Representations and Warranties. The Borrower represents and warrants as of the effective date of this Second Amendment and Restatement to each of the Lenders that: (a) Immediately before and immediately after giving effect to this Second Amendment and Restatement, the representations and warranties set forth in the Credit Agreement are true and correct in all material respects with the same effect as if made on the effective date hereof, except to the extent such representations and warranties expressly relate to an earlier date. (b) Immediately before and immediately after giving effect to this Second Amendment and Restatement, no Event of Default or Default has occurred and is continuing. SECTION 3. Conditions to Effectiveness. This Second Amendment and Restatement shall become effective as of the date hereof when Chase shall have (a) received counterparts of this Second Amendment and Restatement that, when taken together, bear the signatures of the Borrower, the Administrative Agent, Chase and each Lender, and (b) been advised by the Borrower that the Second Long-Term Amendment and Restatement and the Canadian Revolving Credit Agreement have become effective. SECTION 4. Agreement. Except as specifically stated herein, the provisions of the Credit Agreement are and shall remain in full force and effect. As used therein, the terms "Credit Agreement," "herein," "hereunder," "hereinafter," "hereto," "hereof" and words of similar import shall, unless the context otherwise requires, refer to the Credit Agreement as amended hereby. SECTION 5. Applicable Law. THIS SECOND AMENDMENT AND RESTATEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 6. Counterparts. This Second Amendment and Restatement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. -5- SECTION 7. Expenses. The Borrower agrees to reimburse the Administrative Agent for all out-of-pocket expenses incurred by it in connection with this Second Amendment and Restatement, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent. -6- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above. BURLINGTON RESOURCES INC. By: --------------------------------------------- Name: Title: CHASE BANK OF TEXAS, N.A., as Administrative Agent By: --------------------------------------------- Name: Title: CITIBANK, N.A., as Syndication Agent By: --------------------------------------------- Name: Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation Agent By: --------------------------------------------- Name: Title: FLEET NATIONAL BANK, as Documentation Agent By: --------------------------------------------- Name: Title: -7- The Lenders CHASE BANK OF TEXAS, N.A. By: --------------------------------------------- Name: Title: CITIBANK, N.A. By: --------------------------------------------- Name: Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By: --------------------------------------------- Name: Title: FLEET NATIONAL BANK By: --------------------------------------------- Name: Title: MELLON BANK, N.A. By: --------------------------------------------- Name: Title: -8- WELLS FARGO BANK By: --------------------------------------------- Name: Title: THE BANK OF NEW YORK By: --------------------------------------------- Name: Title: THE BANK OF TOKYO-MITSUBISHI, LTD. By: --------------------------------------------- Name: Title: THE NORTHERN TRUST COMPANY By: --------------------------------------------- Name: Title: WACHOVIA BANK, N.A. By: --------------------------------------------- Name: Title: -9- NATIONSBANK, N.A. By: --------------------------------------------- Name: Title: PARIBAS By: --------------------------------------------- Name: Title: BANK OF MONTREAL By: --------------------------------------------- Name: Title: BARCLAYS BANK PLC By: --------------------------------------------- Name: Title: DEUTSCHE BANK By: --------------------------------------------- Name: Title: SCHEDULE II
PRICING GRID - ------------------------------------------------------------------------------------------------------------------ LEVEL I LEVEL II LEVEL III LEVEL IV LEVEL V LEVEL VI - ------------------------------------------------------------------------------------------------------------------ Basis for If the If the If the If the If the If Levels I-V Pricing Borrower's Borrower's Borrower's Borrower's Borrower's do not apply. senior senior senior senior senior unsecured long unsecured unsecured long unsecured long unsecured term debt is long term term debt is term debt is long term rated at least debt is rated rated at least rated at least debt is rated A by S&P or A2 at least A- BBB+ by S&P or BBB by S&P or at least BBB- by Moody's. by S&P or A3 Baa1 by Baa2 by by S&P or by Moody's. Moody's. Moody's. Baa3 by Moody's. - ------------------------------------------------------------------------------------------------------------------ Facility Fee .060% .080% .100% .125% .150% .200% Percentage - ------------------------------------------------------------------------------------------------------------------ Applicable .165% .170% .275% .375% .475% .675% Margin - ------------------------------------------------------------------------------------------------------------------
The applicable pricing level shall change on the date of any relevant change in the rating by S&P or Moody's of any public long term senior unsecured debt securities of the Borrower. In the case of split ratings from S&P and Moody's, the rating to be used to determine the applicable pricing level is the higher of the two (e.g., A-/Baal results in Level II pricing), provided that in the event the split is more than one full category, the average (or the higher of two intermediate ratings) shall be used (e.g., A-/Baa2 results in Level III pricing, as does A-/Baa3). EX-10.3 12 0012.txt SEND AMENDMENT & RESTATEMENT LONG-TERM CONFORMED COPY SECOND AMENDMENT AND RESTATEMENT AGREEMENT dated as of March 31, 2000 (this "Second Amendment and Restatement" or this "Amendment") in respect of the LONG-TERM REVOLVING CREDIT AGREEMENT dated as of February 25, 1998 and amended and restated pursuant to the Amendment and Restatement Agreement dated as of February 23, 1999 (the "Credit Agreement"), among BURLINGTON RESOURCES INC., a Delaware corporation (the "Borrower"), the financial institutions (the "Lenders") listed on the signature pages thereof, Citibank, N.A., as syndication agent for the Lenders, Chase Bank of Texas, N.A. ("Chase" and, in its capacity as administrative agent for the Lenders, the "Administrative Agent"), The Chase Manhattan Bank as auction administrative agent for the Lenders (in such capacity, the "Auction Administrative Agent") and Bank of America, N.A. and Fleet National Bank, as co-documentation agents for the Lenders. The Borrower has advised the Lenders that (i) the Short-Term Revolving Credit Agreement is being amended and restated to, among other things, extend the Stated Termination Date thereof an additional 364 days (the "Second Short-Term Amendment and Restatement") and (ii) a new short-term revolving credit facility in the amount of C$500,000,000 is being obtained for Burlington Resources Canada Energy Limited, its Canadian subsidiary, and has requested in connection therewith that the Credit Agreement be amended and restated as set forth in Section 1 below and the parties hereto are willing so to amend the Credit Agreement. Each capitalized term used but not defined herein has the meaning assigned thereto in the Credit Agreement. In consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto hereby agree, on the terms and subject to the conditions set forth herein, as follows: SECTION 1. Amendment and Restatement. Upon the effectiveness of this Second Amendment and Restatement as provided in Section 3 below, the Credit Agreement shall be amended and restated in the form resulting from the following revisions: (a) Addition of Definition of Canadian Revolving Credit Agreement. Section 1.01 of the Credit Agreement is hereby amended by inserting the following definition immediately prior to the definition of "Capitalization": "Canadian Revolving Credit Agreement" means the Short-Term Revolving Credit Agreement dated as of March 31, 2000, among Burlington Resources Canada Energy Ltd., as the borrower, Burlington Resources Inc., as parent, the financial institutions party thereto, Royal Bank of Canada, as administrative agent and co-arranger for such financial institutions, The Chase Manhattan Bank of Canada, as syndication agent and lead arranger for such financial institutions, and The Bank of Nova Scotia, as documentation agent and co-arranger for such financial institutions. (b) Amendment of Definition of Effective Date. The definition of "Effective Date" in Section 1.01 of the Credit Agreement is hereby amended by deleting the reference to "February 23, 1999" and replacing it with the date "March 31, 2000". -2- (c) Extension of Stated Termination Date and Replacement of Lenders. Section 2.21(d) and Section 2.22 of the Credit Agreement are hereby amended by adding the phrase "or the Canadian Revolving Credit Agreement, as the case may be" immediately following each reference to the Short-Term Revolving Credit Agreement in each such Section. (d) Modification of Debt to Capitalization Test. Paragraph (1) of Section 5.02(b) of the Credit Agreement is hereby amended by (i) inserting the phrase "or the Canadian Revolving Credit Agreement" immediately prior to the phrase "or any replacement therefor" and (ii) inserting the phrase "the sum of the unused commitments under the Canadian Revolving Credit Agreement and" immediately following the phrase "shall not exceed" in such paragraph. (e) Amendment of Negative Covenant with respect to Mergers. Section 5.02(d) of the Credit Agreement is hereby deleted in its entirety and replaced with the following: "(d) Mergers, Etc. Merge, amalgamate or consolidate with any Person, or permit any Material Subsidiary to merge, amalgamate or consolidate with any Person, except that (i) any Subsidiary may merge, amalgamate or consolidate with (or liquidate into) any other Subsidiary or may merge, amalgamate or consolidate with (or liquidate into) the Borrower, provided that (A) if such Subsidiary merges, amalgamates or consolidates with (or liquidates into) the Borrower, either the survivor or successor is the Borrower or such successor or surviving Business Entity is organized and existing under the laws of the United States and expressly assumes the obligations of the Borrower hereunder and under the Notes, (B) if any such Subsidiary merges, amalgamates or consolidates with (or liquidates into) any other Subsidiary of the Borrower, one or more Business Entities that are Subsidiaries of the Borrower are the surviving or successor Business Entity(ies) and, if such Subsidiary is not directly or indirectly wholly-owned by the Borrower, such merger, amalgamation or consolidation is on an arm's length basis and (C) as a result of such merger, amalgamation or consolidation, no Event of Default, and no event which with lapse of time or the giving of notice, or both, would constitute an Event of Default shall have occurred and be continuing, and (ii) the Borrower or any Material Subsidiary may merge, amalgamate or consolidate with any other Business Entity (that is, in addition to the Borrower or any other Subsidiary), provided that (A) if the Borrower merges, amalgamates or consolidates with any such other Business Entity(ies), the survivor or successor Business Entity is the Borrower, (B) if any Material Subsidiary merges, amalgamates or consolidates with any such other Business Entity, each surviving or successor Business Entity is a directly or indirectly wholly-owned Subsidiary, and (C) if either the Borrower or any Material Subsidiary merges, amalgamates or consolidates with any such other Business Entity, after giving effect to such merger, amalgamation or consolidation no Event of Default, and no event which with lapse of time or the giving of notice, or both, would constitute an Event of Default, shall have occurred and be continuing." (f) Cross Default to Canadian Revolving Credit Agreement. Section 6.01(k) of the Credit Agreement is hereby amended by inserting the phrase "or the Canadian Revolving Credit Agreement" immediately following the reference to the Short-Term Revolving Credit Agreement in such Section. (g) Conforming References. All references in the Credit Agreement and the Exhibits to agents, to the Credit Agreement and to the Short-Term Revolving Credit Agreement -3- shall be conformed to reflect this Second Amendment and Restatement, the Second Short-Term Amendment and Restatement and the Canadian Revolving Credit Agreement. SECTION 2. Representations and Warranties. The Borrower represents and warrants as of the effective date of this Second Amendment and Restatement to each of the Lenders that: (a) Immediately before and immediately after giving effect to this Second Amendment and Restatement, the representations and warranties set forth in the Credit Agreement are true and correct in all material respects with the same effect as if made on the effective date hereof, except to the extent such representations and warranties expressly relate to an earlier date. (b) Immediately before and immediately after giving effect to this Second Amendment and Restatement, no Event of Default or Default has occurred and is continuing. SECTION 3. Conditions to Effectiveness. This Second Amendment and Restatement shall become effective as of the date hereof when Chase shall have (a) received counterparts of this Second Amendment and Restatement that, when taken together, bear the signatures of the Borrower, the Administrative Agent, Chase and the Majority Lenders, and (b) been advised by the Borrower that the Second Short-Term Amendment and Restatement and the Canadian Revolving Credit Agreement have become effective. SECTION 4. Agreement. Except as specifically stated herein, the provisions of the Credit Agreement are and shall remain in full force and effect. As used therein, the terms "Credit Agreement", "herein", "hereunder", "hereinafter", "hereto", "hereof" and words of similar import shall, unless the context otherwise requires, refer to the Credit Agreement as amended hereby. SECTION 5. Applicable Law. THIS SECOND AMENDMENT AND RESTATEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. SECTION 6. Counterparts. This Second Amendment and Restatement may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute but one contract. SECTION 7. Expenses. The Borrower agrees to reimburse the Administrative Agent for all out-of-pocket expenses incurred by it in connection with this Second Amendment and Restatement, including the reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel for the Administrative Agent. -4- IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first written above. BURLINGTON RESOURCES INC. By: -------------------------------------------- Name: Title: CHASE BANK OF TEXAS, N.A., as Administrative Agent By: -------------------------------------------- Name: Title: CITIBANK, N.A., as Syndication Agent By: -------------------------------------------- Name: Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Documentation Agent By: -------------------------------------------- Name: Title: FLEET NATIONAL BANK, as Documentation Agent By: -------------------------------------------- Name: Title: -5- The Lenders CHASE BANK OF TEXAS, N.A. By: -------------------------------------------- Name: Title: MORGAN GUARANTY TRUST COMPANY OF NEW YORK By: -------------------------------------------- Name: Title: CITIBANK, N.A. By: -------------------------------------------- Name: Title: BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION By: -------------------------------------------- Name: Title: BANK OF BOSTON, N.A. By: -------------------------------------------- Name: Title: -6- MELLON BANK, N.A. By: -------------------------------------------- Name: Title: WELLS FARGO BANK By: -------------------------------------------- Name: Title: THE BANK OF NEW YORK By: -------------------------------------------- Name: Title: THE BANK OF TOKYO-MITSUBISHI, LTD. By: -------------------------------------------- Name: Title: THE NORTHERN TRUST COMPANY By: -------------------------------------------- Name: Title: WACHOVIA BANK, N.A. By: -------------------------------------------- Name: Title: -7- NATIONSBANK, N.A. By: -------------------------------------------- Name: Title: EX-25 13 0013.txt FORM T-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) ____ ------------------------ CITIBANK, N.A. (Exact name of trustee as specified in its charter) 13-5266470 (I.R.S. employer identification no.) 399 Park Avenue, New York, New York 10043 (Address of principal executive office) (Zip Code) ----------------------- BURLINGTON RESOURCES FINANCE COMPANY (Exact name of obligor as specified in its charter) Nova Scotia Not Applicable (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 5051 Westheimer, Suite 1400 Houston, Texas 77056 (Address of principal executive offices) (Zip Code) ------------------------- Debt Securities (Title of the indenture securities) 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. Name Address ---- ------- Comptroller of the Currency Washington, D.C. Federal Reserve Bank of New York New York, NY 33 Liberty Street New York, NY Federal Deposit Insurance Corporation Washington, D.C. (b) Whether it is authorized to exercise corporate trust powers. Yes. Item 2. Affiliations with Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. None. Item 16. List of Exhibits. List below all exhibits filed as a part of this Statement of Eligibility. Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as exhibits hereto. Exhibit 1 - Copy of Articles of Association of the Trustee, as now in effect. (Exhibit 1 to T-1 to Registration Statement No. 2-79983) Exhibit 2 - Copy of certificate of authority of the Trustee to commence business. (Exhibit 2 to T-1 to Registration Statement No. 2-29577). Exhibit 3 - Copy of authorization of the Trustee to exercise corporate trust powers. (Exhibit 3 to T-1 to Registration Statement No. 2-55519) Exhibit 4 - Copy of existing By-Laws of the Trustee. (Exhibit 4 to T-1 to Registration Statement No. 33-34988) Exhibit 5 - Not applicable. Exhibit 6 - The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939. (Exhibit 6 to T-1 to Registration Statement No. 33-19227.) Exhibit 7 - Copy of the latest Report of Condition of Citibank, N.A. (as of September 30, 2000 - attached) Exhibit 8 - Not applicable. Exhibit 9 - Not applicable. ------------------ SIGNATURE Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, Citibank, N.A., a national banking association organized and existing under the laws of the United States of America, 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 5th. day of February, 2001. CITIBANK, N.A. By /s/P. DeFelice ----------------------------------- P. DeFelice Vice President -----END PRIVACY-ENHANCED MESSAGE-----