AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 13, 2002
REGISTRATION NOS. 333-
333- -01
333- -02
333- -03
333- -04
- --------------------------------------------------------------------------------
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CONOCOPHILLIPS DELAWARE 01-0562944
CONOCO INC. DELAWARE 51-0370352
PHILLIPS PETROLEUM COMPANY DELAWARE 73-0400345
CONOCOPHILLIPS TRUST I DELAWARE APPLIED FOR
CONOCOPHILLIPS TRUST II DELAWARE APPLIED FOR
(Exact name of each registrant (State of (I.R.S. Employer
as specified in its charter) Incorporation) Identification Number)
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
(281) 293-1000
(Address, including zip code, and telephone number,
including area code, of each registrant's principal executive offices)
RICK A. HARRINGTON
SENIOR VICE PRESIDENT, LEGAL,
AND GENERAL COUNSEL
CONOCOPHILLIPS
600 NORTH DAIRY ASHFORD
HOUSTON, TEXAS 77079
(281) 293-1000
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
COPY TO:
KELLY B. ROSE
BAKER BOTTS L.L.P.
910 LOUISIANA
HOUSTON, TEXAS 77002-4995
(713) 229-1234
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended (the "Securities Act"), other than securities offered only
in connection with dividend or interest reinvestment plans, check the following
box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE
SECURITIES TO BE REGISTERED OFFERING PRICE AMOUNT OF
(1)(2)(3) REGISTRATION FEE
------------------ ----------------
Senior Debt Securities and Subordinated Debt Securities of ConocoPhillips....
Common Stock, par value $0.01 per share, of ConocoPhillips(4)................
Preferred Stock, par value $0.01 per share, of ConocoPhillips................
Warrants of ConocoPhillips...................................................
Depositary Shares of ConocoPhillips..........................................
Stock Purchase Contracts of ConocoPhillips...................................
Stock Purchase Units of ConocoPhillips.......................................
Prepaid Stock Purchase Contracts of ConocoPhillips...........................
Preferred Securities of ConocoPhillips Trust I and ConocoPhillips Trust II...
Guarantees of Preferred Securities of ConocoPhillips Trust I and
ConocoPhillips Trust II by ConocoPhillips...............................
Guarantees of the Senior Debt Securities of ConocoPhillips by Conoco Inc.
and Phillips Petroleum Company..........................................
Total............................................................... $5,000,000,000 $460,000 (5)
(1) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(o) under the Securities Act and exclusive of accrued interest,
distributions and dividends, if any. In no event will the aggregate initial
offering price of all securities issued from time to time pursuant to this
Registration Statement exceed $5,000,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. If any
debt securities are issued at an original issue discount, then the offering
price shall be in such greater principal amount as shall result in an
aggregate initial offering price of up to $5,000,000,000 or the equivalent
thereof in foreign currencies, foreign currency units or composite
currencies, less the dollar amount of any securities previously issued
hereunder. Any securities registered hereunder may be sold separately or as
units with other securities registered hereunder.
(2) There is being registered hereunder such indeterminate number or amount of
senior and subordinated debt securities, common stock, preferred stock,
warrants, depositary shares, stock purchase contracts, stock purchase units
and prepaid stock purchase contracts of ConocoPhillips and preferred
securities of ConocoPhillips Trust I and ConocoPhillips Trust II as may
from time to time be issued at indeterminate prices and as may be issuable
upon conversion, redemption, exchange, exercise or settlement of any
securities registered hereunder, including under any applicable
antidilution provisions. Senior and subordinated debt securities of
ConocoPhillips may be issued and sold to ConocoPhillips Trust I and
ConocoPhillips Trust II, in which event such debt securities may later be
distributed to the holders of preferred securities upon a dissolution of
ConocoPhillips Trust I and ConocoPhillips Trust II and the distribution of
their respective assets.
(3) ConocoPhillips also is registering under this Registration Statement all
guarantees and other obligations that it may have with respect to preferred
securities that may be issued by ConocoPhillips Trust I and ConocoPhillips
Trust II. Conoco Inc. and Phillips Petroleum Company are registering under
this Registration Statement all guarantees and other obligations that they
may have with respect to the senior debt securities that may be issued by
ConocoPhillips. No separate consideration will be received for such
guarantees or any other such obligations. Pursuant to Rule 457(n) under the
Securities Act, no registration fee is required with respect to such
guarantees or obligations.
(4) Each share of common stock includes one preferred share purchase right. No
separate consideration is payable for the preferred share purchase rights.
The registration fee for these securities is included in the fee for the
common stock.
(5) Pursuant to Rule 457(p) under the Securities Act, ConocoPhillips hereby
offsets the registration fee required in connection with this Registration
Statement by a total of $460,000, consisting of (1) $375,000 previously
paid by Conoco Inc. and Conoco Funding Company, wholly owned subsidiaries
of ConocoPhillips, in connection with the registration of $1,500,000,000
aggregate initial offering price of securities of Conoco and Conoco Funding
pursuant to the Registration Statement on Form S-3 (Registration Nos.
333-69198 and 333-69198-01) initially filed with the Securities and
Exchange Commission on September 10, 2001; and (2) $85,000 previously paid
by Phillips Petroleum Company and certain Delaware statutory trusts of
Phillips, each of which are wholly owned subsidiaries of ConocoPhillips, in
connection with the registration of $321,969,697 aggregate initial offering
price of securities of Phillips and such trusts pursuant to the
Registration Statement on Form S-3 (Registration Nos. 333-34336,
333-34336-01, 333-34336-02, 333-34336-03 and 333-34336-04) initially filed
with the Securities and Exchange Commission on April 7, 2000. Accordingly,
no filing fee is paid herewith.
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities, and it is not soliciting an offer to buy these
securities, in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED NOVEMBER 13, 2002
PROSPECTUS
[Logo of ConocoPhillips]
$5,000,000,000
CONOCOPHILLIPS CONOCOPHILLIPS CONOCOPHILLIPS TRUST I
SUBORDINATED DEBT SECURITIES SENIOR DEBT SECURITIES CONOCOPHILLIPS TRUST II
COMMON STOCK GUARANTEED AS DESCRIBED IN TRUST PREFERRED SECURITIES
PREFERRED STOCK THIS PROSPECTUS BY GUARANTEED AS DESCRIBED IN THIS
WARRANTS CONOCO INC. PROSPECTUS BY
DEPOSITARY SHARES AND CONOCOPHILLIPS
STOCK PURCHASE CONTRACTS OR UNITS PHILLIPS PETROLEUM COMPANY
PREPAID STOCK PURCHASE CONTRACTS
We will provide the specific terms of the securities in supplements to
this prospectus. You should read this prospectus and any supplement
carefully before you invest. ConocoPhillips common
stock is traded on the New York Stock Exchange under the
trading symbol "COP."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is ,
TABLE OF CONTENTS
About This Prospectus........................................................................................... 2
About ConocoPhillips............................................................................................ 2
About Conoco and Phillips....................................................................................... 2
About the ConocoPhillips Trusts................................................................................. 2
Where You Can Find More Information............................................................................. 3
Forward-Looking Information..................................................................................... 5
Use of Proceeds................................................................................................. 6
Ratio of Earnings to Fixed Charges and Earnings to Combined Fixed Charges and Preferred Stock Dividends......... 6
Description of the Debt Securities.............................................................................. 7
Description of Capital Stock.................................................................................... 17
Description of Warrants......................................................................................... 23
Description of Depositary Shares................................................................................ 24
Description of Stock Purchase Contracts and Stock Purchase Units................................................ 26
Description of the Trust Preferred Securities................................................................... 27
Plan of Distribution............................................................................................ 33
Legal Matters................................................................................................... 35
Experts......................................................................................................... 35
ABOUT THIS PROSPECTUS
This prospectus is part of a joint registration statement that we have
filed with the U.S. Securities and Exchange Commission using a "shelf"
registration process. Using this process, we may offer any combination of the
securities described in this prospectus in one or more offerings with a total
initial offering price of $5,000,000,000. This prospectus provides you with a
general description of the securities we may offer. Each time we use this
prospectus to offer securities, we will provide a prospectus supplement and, if
applicable, a pricing supplement that will describe the specific terms of the
offering. The prospectus supplement and any pricing supplement may also add to,
update or change the information contained in this prospectus. Please carefully
read this prospectus, the prospectus supplement and any pricing supplement, in
addition to the information contained in the documents we refer to under the
heading "Where You Can Find More Information."
ABOUT CONOCOPHILLIPS
ConocoPhillips is the third largest U.S. integrated energy company based
on market capitalization, oil and gas reserves and production, and was formed
through the combination of the businesses of Conoco Inc. and Phillips Petroleum
Company in August 2002. ConocoPhillips is involved in exploring for and
developing, producing and selling crude oil, natural gas and natural gas
liquids; refining crude oil and other feedstocks into petroleum products; buying
and selling crude oil and refined products; transporting, distributing and
marketing petroleum products; and manufacturing and distributing chemicals.
ConocoPhillips is also engaged in developing and operating power facilities.
ConocoPhillips' principal executive office is located at 600 North Dairy
Ashford, Houston, Texas 77079, telephone (281) 293-1000.
ABOUT CONOCO AND PHILLIPS
Conoco Inc. and Phillips Petroleum Company are wholly owned subsidiaries
of ConocoPhillips. Their principal executive offices are located at 600 North
Dairy Ashford, Houston, Texas 77079, telephone (281) 293-1000.
ABOUT THE CONOCOPHILLIPS TRUSTS
ConocoPhillips has formed two Delaware statutory trusts, ConocoPhillips
Trust I and ConocoPhillips Trust II, to raise capital for ConocoPhillips by
issuing preferred securities under this prospectus and investing the proceeds in
debt securities issued by ConocoPhillips. Unless we inform you otherwise in the
prospectus supplement relating to an offering of trust preferred securities,
each trust will exist solely for the purposes of:
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- issuing and selling its trust preferred securities and trust common
securities;
- investing the proceeds from the sale of those securities in a
specific series of ConocoPhillips' debt securities; and
- engaging in only such other activities as are necessary or
incidental to issuing its securities and purchasing and holding
ConocoPhillips' debt securities.
The trust preferred securities and the trust common securities of each
trust will represent undivided beneficial interests in the assets of that trust.
ConocoPhillips will directly or indirectly own all of the common securities of
each trust. The common securities of each trust will represent an aggregate
liquidation amount equal to at least three percent of the total capital of that
trust. The common securities of each trust will rank equally with, and each
trust will make payments on its common securities in proportion to, the trust
preferred securities it issues. If, however, an event of default occurs under
the declaration of trust of any of the trusts, including a default under the
related series of ConocoPhillips' debt securities, ConocoPhillips' right to
payments on the common securities of that trust will be subordinated to your
rights as holder of its trust preferred securities.
The business and affairs of each trust will be conducted by its trustees.
As the holder of the common securities of each trust, ConocoPhillips is
entitled, except in limited circumstances, to appoint, and may remove or
replace, the trustees. ConocoPhillips may increase or decrease the number of
trustees for each trust, but each trust must have at least three trustees.
The duties and obligations of the trustees of each trust are governed by
its declaration of trust. Prior to the issuance of any trust preferred
securities by a trust, we will ensure that at least one of ConocoPhillips'
officers, employees or affiliates acts as regular trustee and that a financial
institution unaffiliated with us acts as property trustee and indenture trustee
for purposes of the Trust Indenture Act of 1939. In addition, unless the
property trustee of a trust maintains a principal place of business in Delaware
and meets the other requirements of applicable law, another trustee of that
trust will have its principal place of business or reside in Delaware. We will
appoint The Bank of New York to serve as property trustee for the trusts and The
Bank of New York (Delaware) to serve as Delaware trustee for the trusts.
ConocoPhillips will pay all of the fees and expenses of each trust,
including those related to any offering of trust preferred securities. In
addition, ConocoPhillips will provide a guarantee with respect to each series of
trust preferred securities issued by a trust under which ConocoPhillips will
unconditionally and irrevocably agree to make certain payments to the holders of
that series of trust preferred securities. That guarantee may, however, be
subject to applicable subordination provisions and will apply only when the
relevant trust has sufficient immediately available funds but fails to make the
payments.
We will provide further information about the trusts in the prospectus
supplement relating to an offering of trust preferred securities.
The principal office of each trust is c/o ConocoPhillips, 600 North Dairy
Ashford, Houston, Texas 77079, telephone (281) 293-1000.
WHERE YOU CAN FIND MORE INFORMATION
ConocoPhillips files, and Conoco and Phillips have filed, annual,
quarterly and current reports, proxy statements and other information with the
SEC. You can read and copy these materials at the SEC's public reference room at
450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain information about
the operation of the SEC's public reference room by calling the SEC at
1-800-SEC-0330. The SEC also maintains an Internet site that contains
information ConocoPhillips, Conoco and Phillips have filed electronically with
the SEC, which you can access over the Internet at http://www.sec.gov. You can
also obtain information about ConocoPhillips at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005. Conoco, Phillips and
the trusts are not subject to the information reporting requirements of the
Securities Exchange Act of 1934.
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This prospectus is part of a joint registration statement we have filed
with the SEC relating to the securities we may offer. As permitted by SEC rules,
this prospectus does not contain all of the information we have included in the
registration statement and the accompanying exhibits and schedules we file with
the SEC. You may refer to the registration statement, exhibits and schedules for
more information about us and the securities. The registration statement,
exhibits and schedules are available at the SEC's public reference room or
through its Internet site.
The SEC allows us to "incorporate by reference" the information
ConocoPhillips, Conoco and Phillips have filed with it, which means that we can
disclose important information to you by referring you to those documents. The
information we incorporate by reference is an important part of this prospectus,
and later information that ConocoPhillips, Conoco or Phillips files with the SEC
will automatically update and supersede this information. We incorporate by
reference the documents listed below and any future filings ConocoPhillips,
Conoco or Phillips makes with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act until all the offered securities are sold. The documents we
incorporate by reference are:
- Conoco's Annual Report on Form 10-K for the year ended December 31,
2001, as filed with the SEC on March 15, 2002;
- Phillips' Annual Report on Form 10-K for the year ended December 31,
2001, as filed with the SEC on March 20, 2002, and as amended by
Form 10-K/A filed with the SEC on June 24, 2002;
- Conoco's Quarterly Reports on Form 10-Q for the quarter ended March
31, 2002, as filed with the SEC on May 8, 2002, and for the quarter
ended June 30, 2002, as filed with the SEC on August 9, 2002;
- Phillips' Quarterly Reports on Form 10-Q for the quarter ended March
31, 2002, as filed with the SEC on May 14, 2002, and for the quarter
ended June 30, 2002, as filed with the SEC on August 12, 2002;
- ConocoPhillips' Current Reports on Form 8-K as filed with the SEC on
August 30, 2002 (as amended by Form 8-K/A filed with the SEC on
October 1, 2002) and October 8, 2002;
- Conoco's Current Reports on Form 8-K as filed with the SEC on
February 25, 2002; February 26, 2002; March 12, 2002; August 16,
2002; and August 30, 2002;
- Phillips' Current Reports on Form 8-K as filed with the SEC on
February 25, 2002; February 26, 2002; March 12, 2002; and August 30,
2002; and
- the description of ConocoPhillips common stock (including the
related preferred share purchase rights) contained in
ConocoPhillips' Current Report on Form 8-K as filed with the SEC on
August 30, 2002, as that description may be updated from time to
time.
You may request a copy of these filings, other than an exhibit to these
filings unless we have specifically incorporated that exhibit by reference into
the filing, at no cost, by writing or telephoning ConocoPhillips at the
following address:
ConocoPhillips
Shareholder Relations Department
P. O. Box 2197
Houston, Texas 77079-2197
Telephone: (281) 293-6800
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS, THE PROSPECTUS SUPPLEMENT AND ANY PRICING
SUPPLEMENT. WE HAVE NOT AUTHORIZED ANY PERSON, INCLUDING ANY SALESMAN OR BROKER,
TO PROVIDE INFORMATION OTHER THAN THAT PROVIDED IN THIS PROSPECTUS, THE
PROSPECTUS SUPPLEMENT OR ANY PRICING SUPPLEMENT. WE HAVE NOT AUTHORIZED ANYONE
TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN OFFER OF THE
SECURITIES IN ANY JURISDICTION WHERE THE OFFER IS NOT PERMITTED. YOU SHOULD
ASSUME THAT THE INFORMATION IN THIS PROSPECTUS, THE PROSPECTUS SUPPLEMENT AND
ANY PRICING
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SUPPLEMENT IS ACCURATE ONLY AS OF THE DATE ON ITS COVER PAGE AND THAT ANY
INFORMATION WE HAVE INCORPORATED BY REFERENCE IS ACCURATE ONLY AS OF THE DATE OF
THE DOCUMENT INCORPORATED BY REFERENCE.
FORWARD-LOOKING INFORMATION
This prospectus, including the information we incorporate by reference,
includes forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934.
You can identify our forward-looking statements by the words "expects,"
"anticipates," "intends," "plans," "projects," "believes," "estimates" and
similar expressions.
We have based the forward-looking statements relating to
ConocoPhillips' operations on its current expectations, estimates and
projections about ConocoPhillips and the industries in which it operates in
general. We caution you that these statements are not guarantees of future
performance and involve risks, uncertainties and assumptions that we cannot
predict. In addition, we have based many of these forward-looking statements on
assumptions about future events that may prove to be inaccurate. Accordingly,
ConocoPhillips' actual outcomes and results may differ materially from what we
have expressed or forecast in the forward-looking statements. Any differences
could result from a variety of factors, including the following:
o fluctuations in crude oil, natural gas and natural gas liquids
prices, refining and marketing margins and margins for ConocoPhillips'
chemicals business;
o changes in the business, operations, results and prospects of
ConocoPhillips;
o the operation and financing of ConocoPhillips' mid-stream and
chemicals joint ventures;
o potential failure to realize fully or within the expected time frame
the expected cost savings and synergies from the combination of Conoco
and Phillips;
o costs or difficulties related to the integration of the businesses of
Conoco and Phillips, as well as the continued integration of businesses
recently acquired by each of them;
o potential failure or delays in achieving expected reserve or
production levels from existing and future oil and gas development
projects due to operating hazards, drilling risks and the inherent
uncertainties in predicting oil and gas reserves and oil and gas
reservoir performance;
o unsuccessful exploratory drilling activities;
o failure of new products and services to achieve market acceptance;
o unexpected cost increases or technical difficulties in constructing
or modifying facilities for exploration and production projects,
manufacturing or refining;
o unexpected difficulties in manufacturing or refining ConocoPhillips'
refined products, including synthetic crude oil, and chemicals
products;
o lack of, or disruptions in, adequate and reliable transportation for
ConocoPhillips' crude oil, natural gas and refined products;
o inability to timely obtain or maintain permits, comply with
government regulations or make capital expenditures required to
maintain compliance;
o potential disruption or interruption of ConocoPhillips' facilities
due to accidents, political events or terrorism;
o international monetary conditions and exchange controls;
o liability for remedial actions, including removal and reclamation
obligations, under environmental regulations;
o liability resulting from litigation;
o general domestic and international economic and political conditions,
including armed hostilities and governmental disputes over territorial
boundaries;
o changes in tax and other laws or regulations applicable to
ConocoPhillips' business; and
o inability to obtain economical financing for exploration and
development projects, construction or modification of facilities and
general corporate purposes.
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USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, the net
proceeds from the sale of the securities will be used for general corporate
purposes, including repayment or refinancing of debt, acquisitions, working
capital, capital expenditures and repurchases and redemptions of securities.
Pending any specific application, we may initially invest funds in short-term
marketable securities or apply them to the reduction of other short-term
indebtedness. Each trust will use all the proceeds received from the sale of its
trust preferred securities and trust common securities to purchase debt
securities issued by ConocoPhillips.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO COMBINED FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table presents the historical ratios of earnings to fixed
charges of each of Conoco and Phillips and the historical ratio of earnings to
combined fixed charges and preferred stock dividends of Phillips for the
six-month period ended June 30, 2002, and for each of the years in the five-year
period ended December 31, 2001. Conoco had no preferred stock outstanding for
any period presented, and accordingly, its ratio of earnings to combined fixed
charges and preferred stock dividends is the same as its ratio of earnings to
fixed charges. The following table also presents the pro forma ratio of earnings
to fixed charges and ratio of earnings to combined fixed charges and preferred
stock dividends of ConocoPhillips for the six-month period ended June 30, 2002,
and for the year ended December 31, 2001, giving effect to the combination of
Conoco and Phillips using the purchase method of accounting, as if the
combination had occurred on January 1, 2001.
SIX MONTHS ENDED YEAR ENDED DECEMBER 31
JUNE 30 -------------------------------------------------
2002 2001 2000 1999 1998 1997
---------------- ---- ---- ---- ---- ----
RATIO OF EARNINGS TO FIXED CHARGES:
Conoco................................. 2.4x 6.4x 8.5x 3.9x 3.2x 12.9x
Phillips................................ 2.7x 5.4x 6.6x 3.7x 2.1x 5.5x
ConocoPhillips (pro forma).............. 2.8x 5.8x
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS:
Phillips................................ 2.7x 5.4x 6.6x 3.7x 2.1x 5.5x
ConocoPhillips (pro forma).............. 2.8x 5.8x
For purposes of this table, "earnings" consist of income before income
taxes, extraordinary items and cumulative effect of accounting changes, plus
fixed charges (excluding capitalized interest and the portion of the preferred
dividend requirement of a subsidiary not previously deducted from pretax income,
but including amortization of amounts previously capitalized), less
undistributed earnings of equity investees of Conoco, Phillips or
ConocoPhillips, as applicable. "Fixed charges" consist of interest (including
capitalized interest) on all debt, amortization of debt discounts and expenses
incurred on issuance, and that portion of rental expense believed to represent
interest. In addition, combined fixed charges and preferred stock dividends
include any amounts accrued to cover the preferred stock dividend or
distribution requirements of a subsidiary.
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DESCRIPTION OF THE DEBT SECURITIES
The debt securities of ConocoPhillips covered by this prospectus will be
ConocoPhillips' general unsecured obligations. ConocoPhillips will issue senior
debt securities unconditionally guaranteed by Conoco and Phillips on a senior
unsecured basis under an indenture, dated as of October 9, 2002, among
ConocoPhillips, as issuer, Conoco and Phillips, as guarantors, and The Bank of
New York, as trustee. We refer to this indenture as the senior indenture.
ConocoPhillips will issue subordinated debt securities under an indenture to be
entered into between ConocoPhillips and The Bank of New York, as trustee. We
refer to this indenture as the subordinated indenture. We refer to the senior
indenture and the subordinated indenture collectively as the indentures. The
indentures will be substantially identical, except for provisions relating to
subordination and covenants.
We have summarized material provisions of the indentures, the debt
securities and the guarantees below. This summary is not complete. We have filed
the senior indenture and the form of subordinated indenture with the SEC as
exhibits to the registration statement, and you should read the indentures for
provisions that may be important to you.
In this summary description of the debt securities, unless we state
otherwise or the context clearly indicates otherwise, all references to
ConocoPhillips mean ConocoPhillips only, all references to Conoco mean Conoco
Inc. only and all references to Phillips mean Phillips Petroleum Company only.
PROVISIONS APPLICABLE TO EACH INDENTURE
GENERAL. Neither indenture limits the amount of debt securities that may
be issued under that indenture, and neither limits the amount of other unsecured
debt or securities that ConocoPhillips may issue. ConocoPhillips may issue debt
securities under the indentures from time to time in one or more series, each in
an amount authorized prior to issuance.
Each of ConocoPhillips and Conoco conducts substantially all its
operations through subsidiaries, and those subsidiaries generate substantially
all its operating income and cash flow. As a result, distributions or advances
from those subsidiaries are the principal source of funds necessary to meet the
debt service obligations of ConocoPhillips and Conoco. Contractual provisions or
laws, as well as the subsidiaries' financial condition and operating
requirements, may limit the ability of each of ConocoPhillips and Conoco to
obtain cash from its subsidiaries that it requires to pay its debt service
obligations, including any payments required to be made under the debt
securities and, if applicable, Conoco's related guarantee. In addition, holders
of the debt securities and, if applicable, Conoco's related guarantee will have
a junior position to the claims of creditors of the subsidiaries of
ConocoPhillips or, if applicable, Conoco on their assets and earnings.
Other than the restrictions contained in the senior indenture on liens and
sale/leaseback transactions described below under " -- Provisions Applicable
Solely to Senior Debt Securities -- Restrictive Covenants," neither indenture
contains any covenants or other provisions designed to protect holders of the
debt securities in the event ConocoPhillips participates in a highly leveraged
transaction or upon a change of control. The indentures also do not contain
provisions that give holders the right to require ConocoPhillips to repurchase
their securities in the event of a decline in ConocoPhillips' credit ratings for
any reason, including as a result of a takeover, recapitalization or similar
restructuring or otherwise.
TERMS. The prospectus supplement relating to any series of debt securities
being offered will include specific terms relating to the offering. These terms
will include some or all of the following:
- whether the debt securities will be senior or subordinated debt
securities;
- the title of the debt securities;
- the total principal amount of the debt securities;
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- whether the debt securities will be issued in individual
certificates to each holder or in the form of temporary or permanent
global securities held by a depositary on behalf of holders;
- the date or dates on which the principal of and any premium on the
debt securities will be payable;
- any interest rate, the date from which interest will accrue,
interest payment dates and record dates for interest payments;
- any right to extend or defer the interest payment periods and the
duration of the extension;
- whether and under what circumstances any additional amounts with
respect to the debt securities will be payable;
- the place or places where payments on the debt securities will be
payable;
- any provisions for optional redemption or early repayment;
- any provisions that would require the redemption, purchase or
repayment of debt securities;
- the denominations in which the debt securities will be issued;
- whether payments on the debt securities will be payable in foreign
currency or currency units or another form and whether payments will
be payable by reference to any index or formula;
- the portion of the principal amount of debt securities that will be
payable if the maturity is accelerated, if other than the entire
principal amount;
- any additional means of defeasance of the debt securities, any
additional conditions or limitations to defeasance of the debt
securities or any changes to those conditions or limitations;
- any changes or additions to the events of default or covenants
described in this prospectus;
- any restrictions or other provisions relating to the transfer or
exchange of debt securities;
- any terms for the conversion or exchange of the debt securities for
other securities of ConocoPhillips or any other entity;
- with respect to the subordinated indenture, any changes to the
subordination provisions for the subordinated debt securities; and
- any other terms of the debt securities not inconsistent with the
applicable indenture.
ConocoPhillips may sell the debt securities at a discount, which may be
substantial, below their stated principal amount. These debt securities may bear
no interest or interest at a rate that at the time of issuance is below market
rates. If ConocoPhillips sells these debt securities, we will describe in the
prospectus supplement any material United States federal income tax consequences
and other special considerations.
If ConocoPhillips sells any of the debt securities for any foreign
currency or currency unit or if payments on the debt securities are payable in
any foreign currency or currency unit, we will describe in the prospectus
supplement the restrictions, elections, tax consequences, specific terms and
other information relating to those debt securities and the foreign currency or
currency unit.
SUBSEQUENT DISTRIBUTION TO HOLDERS OF TRUST SECURITIES. If ConocoPhillips
issues debt securities to a ConocoPhillips trust in connection with the issuance
of trust preferred securities and trust common securities by that trust, those
debt securities subsequently may be distributed to the holders of those
securities either:
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- upon the dissolution of the trust; or
- upon the occurrence of events that we will describe in the
prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS. The indentures generally permit
a consolidation or merger involving ConocoPhillips or, with respect to the
senior indenture, Conoco or Phillips. They also permit ConocoPhillips, Conoco or
Phillips, as applicable, to lease, transfer or dispose of all or substantially
all of its assets. Each of ConocoPhillips and, with respect to the senior
indenture, Conoco and Phillips has agreed, however, that it will not consolidate
with or merge into any entity (other than, with respect to the senior indenture,
ConocoPhillips, Conoco or Phillips, as applicable) or lease, transfer or dispose
of all or substantially all of its assets to any entity (other than, with
respect to the senior indenture, ConocoPhillips, Conoco or Phillips, as
applicable) unless:
- it is the continuing corporation; or
- if it is not the continuing corporation, the resulting entity or
transferee is organized and existing under the laws of any United
States jurisdiction and assumes the performance of its covenants and
obligations under the indentures and, in the case of ConocoPhillips,
the due and punctual payments on the debt securities or, in the case
of Conoco or Phillips with respect to senior debt securities, the
performance of the related guarantee; and
- in either case, immediately after giving effect to the transaction,
no default or event of default would occur and be continuing or
would result from the transaction.
Upon any such consolidation, merger or asset lease, transfer or
disposition involving ConocoPhillips or, with respect to the senior indenture,
Conoco or Phillips, the resulting entity or transferee will be substituted for
ConocoPhillips, Conoco or Phillips, as applicable, under the applicable
indenture and debt securities. In the case of an asset transfer or disposition
other than a lease, ConocoPhillips, Conoco or Phillips, as applicable, will be
released from the applicable indenture.
EVENTS OF DEFAULT. Unless we inform you otherwise in the applicable
prospectus supplement, the following are events of default with respect to a
series of debt securities:
- failure to pay interest on that series of debt securities for 30
days when due;
- failure to pay principal of or any premium on that series of debt
securities when due;
- failure to redeem or purchase debt securities of that series for 30
days when required;
- failure to comply with any covenant or agreement in that series of
debt securities or the applicable indenture (other than an agreement
or covenant that has been included in the indenture solely for the
benefit of other series of debt securities) for 90 days after
written notice by the trustee or by the holders of at least 25% in
principal amount of the outstanding debt securities issued under
that indenture that are affected by that failure;
- specified events involving bankruptcy, insolvency or reorganization
of ConocoPhillips and, with respect to senior debt securities,
Conoco or Phillips; and
- any other event of default provided for that series of debt
securities.
A default under one series of debt securities will not necessarily be a
default under another series. The trustee may withhold notice to the holders of
the debt securities of any default or event of default (except in any payment on
the debt securities) if the trustee considers it in the interest of the holders
of the debt securities to do so.
If an event of default for any series of debt securities occurs and is
continuing, the trustee or the holders of at least 25% in principal amount of
the outstanding debt securities of the series affected by the default (or, in
some
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cases, 25% in principal amount of all debt securities issued under the
applicable indenture that are affected, voting as one class) may declare the
principal of and all accrued and unpaid interest on those debt securities to be
due and payable. If an event of default relating to certain events of
bankruptcy, insolvency or reorganization occurs, the principal of and interest
on all the debt securities issued under the applicable indenture will become
immediately due and payable without any action on the part of the trustee or any
holder. The holders of a majority in principal amount of the outstanding debt
securities of the series affected by the default (or, in some cases, of all debt
securities issued under the applicable indenture that are affected, voting as
one class) may in some cases rescind this accelerated payment requirement. If
debt securities are issued to a ConocoPhillips trust, the related declaration of
trust may require that any rescission be subject to the consent of the holders
of the trust preferred securities and trust common securities issued by that
trust.
A holder of a debt security of any series issued under an indenture may
pursue any remedy under that indenture only if:
- the holder gives the trustee written notice of a continuing event of
default for that series;
- the holders of at least 25% in principal amount of the outstanding
debt securities of that series make a written request to the trustee
to pursue the remedy;
- the holders offer to the trustee indemnity satisfactory to the
trustee;
- the trustee fails to act for a period of 60 days after receipt of
the request and offer of indemnity; and
- during that 60-day period, the holders of a majority in principal
amount of the debt securities of that series do not give the trustee
a direction inconsistent with the request.
This provision does not, however, affect the right of a holder of a debt
security to sue for enforcement of any overdue payment.
In most cases, holders of a majority in principal amount of the
outstanding debt securities of a series (or of all debt securities issued under
the applicable indenture that are affected, voting as one class) may direct the
time, method and place of:
- conducting any proceeding for any remedy available to the trustee;
and
- exercising any trust or power conferred on the trustee relating to
or arising as a result of an event of default.
The senior indenture requires ConocoPhillips, Conoco and Phillips, and the
subordinated indenture requires ConocoPhillips, to file each year with the
trustee a written statement as to their compliance with the covenants contained
in the applicable indenture.
MODIFICATION AND WAIVER. Each indenture may be amended or supplemented if
the holders of a majority in principal amount of the outstanding debt securities
of all series issued under that indenture that are affected by the amendment or
supplement (acting as one class) consent to it. Without the consent of the
holder of each debt security affected, however, no modification may:
- reduce the amount of debt securities whose holders must consent to
an amendment, supplement or waiver;
- reduce the rate of or change the time for payment of interest on the
debt security;
- reduce the principal of the debt security or change its stated
maturity;
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- reduce any premium payable on the redemption of the debt security or
change the time at which the debt security may or must be redeemed;
- change any obligation to pay additional amounts on the debt
security;
- make payments on the debt security payable in currency other than as
originally stated in the debt security;
- impair the holder's right to institute suit for the enforcement of
any payment on or with respect to the debt security;
- make any change in the percentage of principal amount of debt
securities necessary to waive compliance with certain provisions of
the indenture or to make any change in the provision related to
modification;
- with respect to the subordinated indenture, modify the provisions
relating to the subordination of any subordinated debt security in a
manner adverse to the holder of that security; or
- waive a continuing default or event of default regarding any payment
on the debt securities.
Each indenture may be amended or supplemented or any provision of that
indenture may be waived without the consent of any holders of debt securities
issued under that indenture in certain circumstances, including:
- to cure any ambiguity, omission, defect or inconsistency;
- to provide for the assumption of the obligations under the indenture
of ConocoPhillips or, with respect to the senior indenture, Conoco
or Phillips by a successor upon any merger, consolidation or asset
transfer permitted under the indenture;
- to provide for uncertificated debt securities in addition to or in
place of certificated debt securities or to provide for bearer debt
securities;
- to provide any security for, any guarantees of or any additional
obligors on any series of debt securities or, with respect to the
senior indenture, the related guarantees;
- to comply with any requirement to effect or maintain the
qualification of that indenture under the Trust Indenture Act of
1939;
- to add covenants that would benefit the holders of any debt
securities or to surrender any rights ConocoPhillips or, with
respect to the senior indenture, Conoco or Phillips has under the
indenture;
- to add events of default with respect to any debt securities; and
- to make any change that does not adversely affect any outstanding
debt securities of any series issued under that indenture in any
material respect.
The holders of a majority in principal amount of the outstanding debt
securities of any series (or, in some cases, of all debt securities issued under
the applicable indenture that are affected, voting as one class) may waive any
existing or past default or event of default with respect to those debt
securities. Those holders may not, however, waive any default or event of
default in any payment on any debt security or compliance with a provision that
cannot be amended or supplemented without the consent of each holder affected.
DEFEASANCE. When we use the term defeasance, we mean discharge from some
or all of our obligations under the indentures. If any combination of funds or
government securities are deposited with the trustee under an
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indenture sufficient to make payments on the debt securities of a series issued
under that indenture on the dates those payments are due and payable, then, at
ConocoPhillips' option, either of the following will occur:
- ConocoPhillips and, with respect to the senior indenture, Conoco and
Phillips will be discharged from its or their obligations with
respect to the debt securities of that series and, if applicable,
the related guarantees ("legal defeasance"); or
- ConocoPhillips and, with respect to the senior indenture, Conoco and
Phillips will no longer have any obligation to comply with the
restrictive covenants, the merger covenant and other specified
covenants under the applicable indenture, and the related events of
default will no longer apply ("covenant defeasance").
If a series of debt securities is defeased, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
applicable indenture, except for obligations to register the transfer or
exchange of debt securities, replace stolen, lost or mutilated debt securities
or maintain paying agencies and hold moneys for payment in trust. In the case of
covenant defeasance, the obligation of ConocoPhillips to pay principal, premium
and interest on the debt securities and, if applicable, Conoco's and Phillips'
guarantees of the payments will also survive.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the trustee an opinion of counsel that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize income, gain or loss for U.S. federal income tax purposes. If we elect
legal defeasance, that opinion of counsel must be based upon a ruling from the
U.S. Internal Revenue Service or a change in law to that effect.
GOVERNING LAW. New York law will govern the indentures and the debt
securities.
TRUSTEE. The Bank of New York is the trustee under the senior indenture
and will be the trustee under the subordinated indenture. The Bank of New York
also serves as trustee or custodian relating to approximately $2.7 billion of
debt, trust preferred securities and other long-term repayment obligations of
subsidiaries of ConocoPhillips as of June 30, 2002. The Bank of New York and its
affiliates perform certain commercial banking services for us for which they
receive customary fees and are lenders under various outstanding credit
facilities of subsidiaries of ConocoPhillips.
If an event of default occurs under an indenture and is continuing, the
trustee under that indenture will be required to use the degree of care and
skill of a prudent person in the conduct of that person's own affairs. The
trustee will become obligated to exercise any of its powers under that indenture
at the request of any of the holders of any debt securities issued under that
indenture only after those holders have offered the trustee indemnity
satisfactory to it.
Each indenture contains limitations on the right of the trustee, if it
becomes a creditor of ConocoPhillips or, if applicable, Conoco or Phillips, to
obtain payment of claims or to realize on certain property received for any such
claim, as security or otherwise. The trustee is permitted to engage in other
transactions with ConocoPhillips and, if applicable, Conoco and Phillips. If,
however, it acquires any conflicting interest, it must eliminate that conflict
or resign within 90 days after ascertaining that it has a conflicting interest
and after the occurrence of a default under the applicable indenture, unless the
default has been cured, waived or otherwise eliminated within the 90-day period.
FORM, EXCHANGE, REGISTRATION AND TRANSFER. The debt securities will be
issued in registered form, without interest coupons. There will be no service
charge for any registration of transfer or exchange of the debt securities.
However, payment of any transfer tax or similar governmental charge payable for
that registration may be required.
Debt securities of any series will be exchangeable for other debt
securities of the same series, the same total principal amount and the same
terms but in different authorized denominations in accordance with the
applicable indenture. Holders may present debt securities for registration of
transfer at the office of the security registrar or any transfer agent
ConocoPhillips designates. The security registrar or transfer agent will effect
the transfer or exchange if its requirements and the requirements of the
applicable indenture are met.
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The trustee will be appointed as security registrar for the debt
securities. If a prospectus supplement refers to any transfer agents
ConocoPhillips initially designates, ConocoPhillips may at any time rescind that
designation or approve a change in the location through which any transfer agent
acts. ConocoPhillips is required to maintain an office or agency for transfers
and exchanges in each place of payment. ConocoPhillips may at any time designate
additional transfer agents for any series of debt securities.
In the case of any redemption, ConocoPhillips will not be required to
register the transfer or exchange of:
- any debt security during a period beginning 15 business days prior
to the mailing of the relevant notice of redemption or repurchase
and ending on the close of business on the day of mailing of such
notice; or
- any debt security that has been called for redemption in whole or in
part, except the unredeemed portion of any debt security being
redeemed in part.
PAYMENT AND PAYING AGENTS. Unless we inform you otherwise in a prospectus
supplement, payments on the debt securities will be made in U.S. dollars at the
office of the trustee and any paying agent. At ConocoPhillips' option, however,
payments may be made by wire transfer for global debt securities or by check
mailed to the address of the person entitled to the payment as it appears in the
security register. Unless we inform you otherwise in a prospectus supplement,
interest payments may be made to the person in whose name the debt security is
registered at the close of business on the record date for the interest payment.
Unless we inform you otherwise in a prospectus supplement, the trustee
under the applicable indenture will be designated as the paying agent for
payments on debt securities issued under that indenture. ConocoPhillips may at
any time designate additional paying agents or rescind the designation of any
paying agent or approve a change in the office through which any paying agent
acts.
If the principal of or any premium or interest on debt securities of a
series is payable on a day that is not a business day, the payment will be made
on the following business day. For these purposes, unless we inform you
otherwise in a prospectus supplement, a "business day" is any day that is not a
Saturday, a Sunday or a day on which banking institutions in any of New York,
New York; Houston, Texas or a place of payment on the debt securities of that
series is authorized or obligated by law, regulation or executive order to
remain closed.
Subject to the requirements of any applicable abandoned property laws, the
trustee and paying agent will pay to us upon written request any money held by
them for payments on the debt securities that remains unclaimed for two years
after the date upon which that payment has become due. After payment to us,
holders entitled to the money must look to us for payment. In that case, all
liability of the trustee or paying agent with respect to that money will cease.
BOOK-ENTRY DEBT SECURITIES. The debt securities of a series may be issued
in the form of one or more global debt securities that would be deposited with a
depositary or its nominee identified in the prospectus supplement. Global debt
securities may be issued in either temporary or permanent form. We will describe
in the prospectus supplement the terms of any depositary arrangement and the
rights and limitations of owners of beneficial interests in any global debt
security.
PROVISIONS APPLICABLE SOLELY TO SENIOR DEBT SECURITIES
RANKING. The senior debt securities will constitute senior debt of
ConocoPhillips and will rank equally with all of its unsecured and
unsubordinated debt from time to time outstanding.
GUARANTEE. Conoco and Phillips will each fully and unconditionally
guarantee on a senior unsecured basis the full and prompt payment of the
principal of and any premium and interest on the senior debt securities issued
by ConocoPhillips when and as the payment becomes due and payable, whether at
maturity or otherwise. The guarantees provide that in the event of a default in
the payment of principal of or any premium or interest on a senior debt
security, the holder of that debt security may institute legal proceedings
directly against Conoco and Phillips to
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enforce the guarantees without first proceeding against ConocoPhillips. The
guarantees will rank equally with all of Conoco's and Phillips' other unsecured
and unsubordinated debt from time to time outstanding.
RESTRICTIVE COVENANTS. ConocoPhillips has agreed to two principal
restrictions on its activities for the benefit of holders of the senior debt
securities. The restrictive covenants summarized below will apply to a series of
senior debt securities (unless waived or amended) as long as any of those debt
securities are outstanding, unless the prospectus supplement for the series
states otherwise. We have used in this summary description capitalized terms
that we have defined below under "-- Glossary."
Limitation on Liens
ConocoPhillips has agreed that it and its Principal Domestic Subsidiaries
will issue, assume or guarantee Debt for borrowed money secured by a lien upon a
Principal Property or shares of stock or Debt of any Principal Domestic
Subsidiary only if the outstanding senior debt securities are secured equally
and ratably with or prior to the Debt secured by that lien. If the senior debt
securities are so secured, ConocoPhillips has the option to secure any of its
and its Subsidiaries' other Debt or obligations equally and ratably with or
prior to the Debt secured by the lien and, accordingly, equally and ratably with
the senior debt securities. This covenant has exceptions that permit:
(a) liens existing on the date ConocoPhillips first issues a series
of senior debt securities under the senior indenture;
(b) liens on the property, assets, stock, equity or Debt of any
entity existing at the time ConocoPhillips or a Subsidiary acquires that
entity or its property or at the time the entity becomes a Subsidiary or a
Principal Domestic Subsidiary;
(c) liens on assets either:
- existing at the time of acquisition of the assets,
- securing all or part of the cost of acquiring,
constructing, improving, developing or expanding the
assets, or
- securing Debt incurred to finance all or part of the
purchase price of the assets or the cost of
constructing, improving, developing or expanding the
assets that was incurred before, at the time of or
within two years after the later of the acquisition, the
completion of construction, improvement, development or
expansion or the commencement of commercial operation of
the assets;
(d) liens on specific assets to secure Debt incurred to provide
funds for the cost of exploration, drilling or development of those
assets;
(e) intercompany liens;
(f) liens securing industrial development, pollution control or
other revenue bonds of a domestic government entity;
(g) liens on personal property, other than shares of stock or debt
of any Principal Domestic Subsidiary, securing loans maturing in less than
one year;
(h) liens on a Principal Property arising in connection with the
sale of accounts receivable resulting from the sale of oil or gas at the
wellhead;
(i) statutory or other liens arising in the ordinary course of
business and relating to amounts that are not yet delinquent or are being
contested in good faith; and
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(j) any extensions, substitutions, replacements or renewals of the
above-described liens or any Debt secured by these liens if both:
- the new lien is limited to the property (plus any
improvements) secured by the original lien, and
- the amount of Debt secured by the new lien and not
otherwise permitted does not materially exceed the
amount of Debt refinanced plus any premium or fee
payable in connection with any such extension,
substitution, replacement or renewal.
In addition, without securing the senior debt securities as described
above, ConocoPhillips and its Principal Domestic Subsidiaries may issue, assume
or guarantee Debt that this covenant would otherwise restrict in a total
principal amount that, when added to all other outstanding Debt of
ConocoPhillips and its Principal Domestic Subsidiaries that this covenant would
otherwise restrict and the total amount of Attributable Debt outstanding for
Sale/Leaseback Transactions, does not exceed a "basket" equal to 10% of
Consolidated Adjusted Net Assets. When calculating this total principal amount,
we exclude from the calculation Attributable Debt from Sale/Leaseback
Transactions in connection with which ConocoPhillips or a Subsidiary has
purchased property or retired or defeased Debt as described in clause (b) below
under "Limitation on Sale/Leaseback Transactions."
The following types of transactions do not create "Debt" secured by
"liens" within the meaning of this covenant:
(a) the sale or other transfer of either:
- oil, gas or other minerals in place for a period of time
until, or in an amount such that, the purchaser will
realize from those minerals a specified amount of money
or a specified amount of those minerals, or
- any other interest in property commonly referred to as a
"production payment"; and
(b) the mortgage or pledge of any property of ConocoPhillips or a
Subsidiary in favor of the United States, any state of the United States
or any department, agency or instrumentality of either, to secure payments
under any contract or statute.
Limitation on Sale/Leaseback Transactions
ConocoPhillips has agreed that it and any of its Principal Domestic
Subsidiaries will enter into a Sale/Leaseback Transaction only if at least one
of the following applies:
(a) ConocoPhillips or that Principal Domestic Subsidiary could incur
Debt in a principal amount equal to the Attributable Debt for that
Sale/Leaseback Transaction and, without violating the "Limitation on
Liens" covenant, could secure that Debt by a lien on the property to be
leased without equally and ratably securing the senior debt securities.
(b) Within the period beginning one year before the closing of the
Sale/Leaseback Transaction and ending one year after the closing,
ConocoPhillips or any Subsidiary applies the net proceeds of the
Sale/Leaseback Transaction either:
- to the voluntary defeasance or retirement of any senior
debt securities issued under the senior indenture or any
Funded Debt, or
- to the acquisition, exploration, drilling, development,
construction, improvement or expansion of one or more
Principal Properties.
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Any net proceeds that are not applied for the purposes described in (b)
will be subject to the limitation described in (a). For purposes of these
calculations, the net proceeds of the Sale/Leaseback Transaction means the
net proceeds of the sale or transfer of the property leased in the
Sale/Leaseback Transaction (or, if greater, the fair value of that
property at the time of the Sale/Leaseback Transaction as determined by
ConocoPhillips' board of directors).
Glossary
"Attributable Debt" means the present value of the rental payments during
the remaining term of the lease included in the Sale/Leaseback Transaction. To
determine that present value, we use a discount rate equal to the lease rate of
the Sale/Leaseback Transaction. For these purposes, rental payments do not
include any amounts required to be paid for taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
that do not constitute payments for property rights. In the case of any lease
that the lessee may terminate by paying a penalty, if the net amount (including
payment of the penalty) would be reduced if the lessee terminated the lease on
the first date that it could be terminated, then this lower net amount will be
used.
"Consolidated Adjusted Net Assets" means the total amount of assets of
ConocoPhillips and its consolidated subsidiaries less:
- all current liabilities (excluding liabilities that are extendable
or renewable at ConocoPhillips' option to a date more than 12 months
after the date of calculation and excluding current maturities of
long-term debt); and
- total prepaid expenses and deferred charges.
ConocoPhillips will calculate its Consolidated Adjusted Net Assets based on its
most recent quarterly balance sheet.
"Debt" means all notes, bonds, debentures or similar evidences of debt for
money borrowed.
"Funded Debt" means all Debt that matures on or is renewable to a date
more than one year after the date the Debt is incurred.
"Principal Domestic Subsidiary" means each of Conoco, Phillips and any
Subsidiary (1) that has substantially all its assets in the United States, (2)
that owns a Principal Property and (3) in which ConocoPhillips' capital
investment, together with any intercompany loans to that Subsidiary and any debt
of that Subsidiary guaranteed by ConocoPhillips or any other Subsidiary, exceeds
$100 million.
"Principal Property" means any oil or gas producing property located
onshore or offshore of the United States or any refinery or manufacturing plant
located in the United States. This term excludes any property, refinery or plant
that in the opinion of ConocoPhillips' board of directors is not materially
important to the total business conducted by ConocoPhillips and its consolidated
subsidiaries. This term also excludes any transportation or marketing facilities
or assets.
"Sale/Leaseback Transaction" means any arrangement with anyone under which
ConocoPhillips or a Subsidiary leases any Principal Property that ConocoPhillips
or that Subsidiary has sold or transferred or will sell or transfer to that
person. This term excludes the following:
- temporary leases for a term of not more than three years;
- intercompany leases;
- leases of a Principal Property executed by the time of or within 12
months after the latest of the acquisition, the completion of
construction or improvement, or the commencement of commercial
operation of the Principal Property; and
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- arrangements under any provision of law with an effect similar to
the former Section 168(f)(8) of the Internal Revenue Code of 1954.
"Subsidiary" means an entity at least a majority of the outstanding voting
stock of which is owned, directly or indirectly, by ConocoPhillips or by one or
more other Subsidiaries, or by ConocoPhillips and one or more other
Subsidiaries.
PROVISIONS APPLICABLE SOLELY TO SUBORDINATED DEBT SECURITIES
RANKING. The subordinated debt securities will rank junior to all Senior
Debt of ConocoPhillips and may rank equally with or senior to other subordinated
debt of ConocoPhillips that may be outstanding from time to time.
SUBORDINATION. Under the subordinated indenture, payment of the principal
of and any premium and interest on the subordinated debt securities will
generally be subordinated and junior in right of payment to the prior payment in
full of all Senior Debt. Unless we inform you otherwise in the prospectus
supplement, ConocoPhillips may not make any payment of principal of or any
premium or interest on the subordinated debt securities if it fails to pay the
principal, interest, premium or any other amounts on any Senior Debt when due.
The subordination does not affect ConocoPhillips' obligation, which is
absolute and unconditional, to pay, when due, the principal of and any premium
and interest on the subordinated debt securities. In addition, the subordination
does not prevent the occurrence of any default under the subordinated indenture.
The subordinated indenture does not limit the amount of Senior Debt that
ConocoPhillips may incur. As a result of the subordination of the subordinated
debt securities, if ConocoPhillips becomes insolvent, holders of subordinated
debt securities may receive less on a proportionate basis than other creditors.
Unless we inform you otherwise in the prospectus supplement, "Senior Debt"
will mean all debt, including guarantees, of ConocoPhillips, unless the debt
states that it is not senior to the subordinated debt securities or other junior
debt of ConocoPhillips. Senior Debt with respect to a series of subordinated
debt securities could include other series of debt securities issued under the
subordinated indenture.
DESCRIPTION OF CAPITAL STOCK
The following description of ConocoPhillips' common stock, preferred
stock, certificate of incorporation and bylaws is a summary only and is subject
to the complete text of ConocoPhillips' certificate of incorporation and bylaws
and the rights agreement ConocoPhillips has entered into with Mellon Investor
Services LLC, as rights agent, which we have filed as exhibits to the
registration statement. You should read those documents for provisions that may
be important to you.
ConocoPhillips is authorized to issue 2.5 billion shares of common stock,
par value $0.01 per share, and 500 million shares of preferred stock, par value
$0.01 per share.
COMMON STOCK
Each holder of ConocoPhillips common stock is entitled to one vote per
share in the election of directors and on all other matters submitted to the
vote of stockholders. However, except as otherwise required by law, holders of
ConocoPhillips common stock are not entitled to vote on any amendment to
ConocoPhillips' certificate of incorporation that relates solely to the terms of
any series of ConocoPhillips preferred stock if holders of the ConocoPhillips
preferred stock are entitled to vote on the amendment under ConocoPhillips'
certificate of incorporation or Delaware law. There are no cumulative voting
rights, meaning that the holders of a majority of the shares of ConocoPhillips
common stock voting for the election of directors can elect all of the directors
standing for election.
Subject to the rights of the holders of any ConocoPhillips preferred stock
that may be outstanding from time to time, each share of ConocoPhillips common
stock will have an equal and ratable right to receive dividends
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as may be declared by the ConocoPhillips board of directors out of funds legally
available for the payment of dividends, and, in the event of the liquidation,
dissolution or winding up of ConocoPhillips, will be entitled to share equally
and ratably in the assets available for distribution to ConocoPhillips
stockholders. No holder of ConocoPhillips common stock will have any preemptive
or other subscription rights to purchase or subscribe for any securities of
ConocoPhillips.
ConocoPhillips common stock is traded on the New York Stock Exchange under
the trading symbol "COP." The transfer agent for the common stock is Mellon
Investor Services LLC.
PREFERRED STOCK
ConocoPhillips' board of directors has the authority, without stockholder
approval, to issue up to 500 million shares of preferred stock in one or more
series and to fix the number of shares and terms of each series. The board may
determine the designation and other terms of each series, including, among
others:
- dividend rights;
- voting powers;
- preemptive rights;
- conversion rights;
- redemption rights; and
- liquidation preferences.
The prospectus supplement relating to any series of preferred stock
ConocoPhillips is offering will include specific terms relating to the offering
and the name of any transfer agent for that series. We will file the form of the
preferred stock with the SEC before we issue any of it, and you should read it
for provisions that may be important to you. The prospectus supplement will
include some or all of the following terms:
- the title of the preferred stock;
- the maximum number of shares of the series;
- the dividend rate or the method of calculating the dividend, the
date from which dividends will accrue and whether dividends will be
cumulative;
- any liquidation preference;
- any optional redemption provisions;
- any sinking fund or other provisions that would obligate us to
redeem or purchase the preferred stock;
- any terms for the conversion or exchange of the preferred stock for
other securities of us or any other entity;
- whether ConocoPhillips has elected to issue depositary shares with
respect to the preferred stock as described below under "Description
of Depositary Shares";
- any voting rights; and
- any other preferences and relative, participating, optional or other
special rights or any qualifications, limitations or restrictions on
the rights of the shares.
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The issuance of preferred stock, while providing desired flexibility in
connection with possible acquisitions and other corporate purposes, could
adversely affect the voting power of holders of ConocoPhillips' common stock. It
also could affect the likelihood that holders of the common stock will receive
dividend payments and payments upon liquidation.
For purposes of the rights plan described below, ConocoPhillips' board of
directors has designated 10 million shares of preferred stock to constitute the
Series A Junior Participating Preferred Stock. ConocoPhillips Series A preferred
stock will be issuable only in connection with the exercise of rights under the
rights plan. For a description of the rights plan, please read " -- Stockholder
Rights Plan."
Each share of ConocoPhillips Series A preferred stock will be entitled to
a minimum preferential quarterly dividend payment per share of the greater of $1
or 100 times the dividend declared per share of ConocoPhillips common stock. In
the event of the liquidation, dissolution or winding up of ConocoPhillips, the
holders of ConocoPhillips Series A preferred stock will be entitled to a minimum
preferential liquidation payment per share equal to the greater of $100 (plus
all accrued and unpaid dividends) or 100 times the liquidation payment made per
share of ConocoPhillips common stock. Each share of ConocoPhillips Series A
preferred stock will have 100 votes on all matters submitted to a vote of
ConocoPhillips stockholders, voting together with the ConocoPhillips common
stock. In the event of any merger, consolidation or other transaction in which
shares of ConocoPhillips common stock are exchanged for securities, cash and/or
any other property, each share of ConocoPhillips Series A preferred stock will
be entitled to receive 100 times the amount of securities, cash and/or other
properties received per share of ConocoPhillips common stock. These rights will
be protected by customary antidilution provisions.
ANTI-TAKEOVER PROVISIONS OF CONOCOPHILLIPS' CERTIFICATE OF INCORPORATION AND
BYLAWS
ConocoPhillips' certificate of incorporation and bylaws contain provisions
that could delay or make more difficult the acquisition of control of
ConocoPhillips through a hostile tender offer, open market purchases, proxy
contest, merger or other takeover attempt that a stockholder might consider in
his or her best interest, including those attempts that might result in a
premium over the market price of ConocoPhillips' common stock.
AUTHORIZED BUT UNISSUED STOCK
ConocoPhillips has 2.5 billion authorized shares of common stock and 500
million authorized shares of preferred stock. One of the consequences of
ConocoPhillips' authorized but unissued common stock and undesignated preferred
stock may be to enable ConocoPhillips' board of directors to make more difficult
or to discourage an attempt to obtain control of ConocoPhillips. If, in the
exercise of its fiduciary obligations, ConocoPhillips' board of directors
determined that a takeover proposal was not in ConocoPhillips' best interest,
the board could authorize the issuance of those shares without stockholder
approval, subject to limits imposed by the New York Stock Exchange. The shares
could be issued in one or more transactions that might prevent or make the
completion of a proposed change of control transaction more difficult or costly
by:
- diluting the voting or other rights of the proposed acquiror or
insurgent stockholder group;
- creating a substantial voting block in institutional or other hands
that might undertake to support the position of the incumbent board;
or
- effecting an acquisition that might complicate or preclude the
takeover.
In this regard, ConocoPhillips' certificate of incorporation grants its
board of directors broad power to establish the rights and preferences of the
authorized and unissued preferred stock. ConocoPhillips' board could establish
one or more series of preferred stock that entitle holders to:
- vote separately as a class on any proposed merger or consolidation;
- cast a proportionately larger vote together with ConocoPhillips
common stock on any transaction or for all purposes;
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- elect directors having terms of office or voting rights greater than
those of other directors;
- convert preferred stock into a greater number of shares of
ConocoPhillips common stock or other securities;
- demand redemption at a specified price under prescribed
circumstances related to a change of control of ConocoPhillips; or
- exercise other rights designed to impede a takeover.
STOCKHOLDER ACTION BY WRITTEN CONSENT; SPECIAL MEETINGS OF STOCKHOLDERS
ConocoPhillips' certificate of incorporation provides that no action that
is required or permitted to be taken by its stockholders at any annual or
special meeting may be taken by written consent of stockholders in lieu of a
meeting, and that special meetings of stockholders may be called only by the
board of directors or the chairman of the board.
STAGGERED BOARD OF DIRECTORS
ConocoPhillips' certificate of incorporation divides the board of
directors into three classes, as nearly equal in number as possible, serving
staggered three-year terms. The classification of the board of directors has the
effect of requiring at least two annual stockholder meetings, instead of one, to
effect a change in a majority of the board of directors.
REMOVAL OF DIRECTORS
Directors may only be removed for cause by a vote of a majority of the
voting power of ConocoPhillips' outstanding voting stock. A vacancy on
ConocoPhillips' board of directors may be filled by a vote of a majority of the
directors in office or by the stockholders if that vacancy resulted from the
action of stockholders (in which case that vacancy may not be filled by the
directors).
ADVANCE NOTICE PROCEDURE FOR DIRECTOR NOMINATIONS AND STOCKHOLDER
PROPOSALS
ConocoPhillips' bylaws provide the manner in which stockholders may give
notice of stockholder nominations and other business to be brought before an
annual meeting. In general, to bring a matter before an annual meeting or to
nominate a candidate for director, a stockholder must give notice of the
proposed matter or nomination not less than 90 and not more than 120 days prior
to the first anniversary date of the immediately preceding meeting. If the
annual meeting is not within 30 days before or after the anniversary date of the
preceding annual meeting, the stockholder notice must be received no later than
the later of (1) 90 days prior to the anniversary date or (2) the close of
business on the 10th day following the day on which notice of the annual meeting
was mailed or first publicly disclosed, whichever first occurs.
These procedures may limit the ability of stockholders to nominate
candidates for director and bring other business before a stockholders meeting,
including the consideration of any transaction that could result in a change of
control and that might result in a premium to ConocoPhillips' stockholders.
FAIR PRICE PROVISION
ConocoPhillips' certificate of incorporation requires that specified
business combinations involving a person or entity that beneficially owns 15% or
more of the outstanding shares of ConocoPhillips voting stock or that is an
affiliate of that person, which we refer to as a related person, must be
approved by (1) at least 80% of the votes entitled to be cast by the voting
stock and (2) at least 66-2/3% of the votes entitled to be cast by the voting
stock other than voting stock owned by the related person. These supermajority
requirements do not apply if:
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- a majority of the directors who are unaffiliated with the related
person and who were in office before the related person became a
related person approve the transaction; or
- specified fair price conditions are met that in general provide that
the payment received by the stockholders in the business combination
is not less than the amount the related person paid or agreed to pay
for any shares of ConocoPhillips' voting stock acquired within one
year of the business combination.
AMENDMENT OF CERTIFICATE OF INCORPORATION AND BYLAWS
Amendments to ConocoPhillips' certificate of incorporation generally must
be approved by the board of directors and by a majority of the outstanding stock
entitled to vote on the amendment, and, if applicable, by majority of the
outstanding stock of each class or series entitled to vote on the amendment as a
class or series.
Under the ConocoPhillips' certificate of incorporation, the affirmative
vote of shares representing not less than 80% of the votes entitled to be cast
by the voting stock is required to alter, amend or adopt any provision
inconsistent with or repeal the provisions that, among others, (1) control the
constitution of the board of directors, (2) deny stockholders the right to call
a special meeting or to act by written consent, (3) limit or eliminate the
liability of directors to ConocoPhillips and (4) set the 80% supermajority
threshold applicable with respect to the provisions above.
Additionally, the affirmative vote of shares representing (1) not less
than 80% of the votes entitled to be cast by the voting stock, voting together
as a single class, and (2) not less than 66-2/3% of the votes entitled to be
case by the voting stock not owned, directly or indirectly, by any related
person is required to amend, repeal, or adopt any provisions inconsistent with,
the fair price provision described above.
ConocoPhillips' bylaws have similar supermajority vote requirements for
provisions relating to, among others, special stockholder meetings; prohibition
on action by stockholder written consent; nominating directors and bringing
business before an annual stockholder meeting; the number, classification and
qualification of directors; filling vacancies on the board of directors; and
removing directors.
STOCKHOLDER RIGHTS PLAN
ConocoPhillips has entered into a rights agreement with Mellon Investor
Services LLC, as rights agent. As with most rights agreements, the terms of the
ConocoPhillips rights agreement are complex and not easily summarized,
particularly as they relate to the acquisition of ConocoPhillips common stock
and to the exercisability of the rights. Accordingly, this summary may not
contain all of the information that is important to you, and is qualified in its
entirety by reference to the ConocoPhillips rights agreement, which we have
filed as an exhibit to the registration statement.
Under the terms of the rights agreement, each share of common stock has
attached to it a right to purchase one one-hundredth of a share of
ConocoPhillips Series A preferred stock. The purchase price per one-hundredth of
a share of Series A preferred stock under the rights agreement is $300.
Initially, the rights under the ConocoPhillips rights agreement will be
attached to certificates representing ConocoPhillips common stock and no
separate certificates representing the rights will be distributed. The rights
will separate from the ConocoPhillips common stock and be represented by
separate certificates at the earlier of (1) the first date of a public
announcement that a person has acquired 15% or more of the outstanding
ConocoPhillips common stock or (2) the date as may be determined by the
ConocoPhillips board of directors after the commencement by a person of a tender
offer or exchange offer for 15% or more of the outstanding ConocoPhillips common
stock.
After the rights separate from the ConocoPhillips common stock,
certificates representing the rights will be mailed to record holders of
ConocoPhillips common stock. Once distributed, the rights certificates alone
will represent the rights.
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The rights will not be exercisable until the date the rights separate from
the ConocoPhillips common stock. The rights will expire on the tenth anniversary
of the date of the ConocoPhillips rights agreement unless earlier redeemed or
exchanged by ConocoPhillips.
If an acquiror obtains beneficial ownership of 15% or more of
ConocoPhillips common stock, then each right will be adjusted so that it will
entitle the holder (other than the acquiror, whose rights will become void) to
purchase a number of shares of ConocoPhillips common stock equal to two times
the exercise price of the right.
If an acquiror obtains beneficial ownership of 15% or more of
ConocoPhillips common stock and any of the following occurs:
- ConocoPhillips merges into or consolidates with another entity,
- an acquiring entity merges into ConocoPhillips with ConocoPhillips
as the surviving entity and the outstanding shares of ConocoPhillips
common stock are converted into cash, property or securities, or
- ConocoPhillips sells more than 50% of its assets or earning power,
then each right will entitle the holder to purchase a number of shares of common
stock of the acquiror having a then-current market value (as defined in the
ConocoPhillips rights agreement) of twice the exercise price of the right.
In the event of a public announcement of an acquiror obtaining beneficial
ownership of 15% or more of the outstanding shares of ConocoPhillips common
stock (but only if the beneficial ownership of the acquiror is less than 50%),
the ConocoPhillips board of directors may, at its option, exchange all or a part
of the outstanding rights for ConocoPhillips common stock at an exchange ratio
of one share of ConocoPhillips common stock per right, adjusted to reflect stock
splits, stock dividends or similar transactions.
The ConocoPhillips board of directors may, at its option, redeem the
rights, in whole but not in part, at any time prior to the time an acquiror
obtains beneficial ownership of 15% or more of the outstanding shares of
ConocoPhillips common stock. The redemption price is $.01 per right, adjusted to
reflect stock splits, stock dividends or similar transactions. ConocoPhillips
may, at its option, pay the redemption price in cash, common stock or other
consideration as deemed appropriate by the ConocoPhillips board of directors.
The terms of the rights may be amended by the ConocoPhillips board of
directors without the consent of the holders of the rights, except that, after
an acquiror obtains 15% or more of ConocoPhillips common stock, the
ConocoPhillips rights agreement may not be amended in any manner that would
adversely affect the interests of the rights holders.
The ConocoPhillips rights agreement contains provisions that have
anti-takeover effects. The rights will cause substantial dilution to a person or
group that attempts to acquire ConocoPhillips on terms not approved by the
ConocoPhillips board of directors. However, since the rights may either be
redeemed or otherwise made inapplicable by ConocoPhillips prior to an acquiror
obtaining beneficial ownership of 15% or more of ConocoPhillips common stock,
the rights should not interfere with any merger or business combination approved
by the ConocoPhillips board of directors prior to that occurrence. In addition,
the rights should not interfere with a proxy contest.
LIMITATION OF LIABILITY OF DIRECTORS
To the fullest extent permitted by Delaware law, ConocoPhillips' directors
will not be personally liable to ConocoPhillips or its stockholders for monetary
damages for breach of fiduciary duty as a director. Delaware law currently
permits the elimination of all liability for breach of fiduciary duty, except
liability:
- for any breach of the duty of loyalty to ConocoPhillips or its
stockholders;
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- for acts or omissions not in good faith or involving intentional
misconduct or a knowing violation of law;
- for unlawful payment of a dividend or unlawful stock purchases or
redemptions; and
- for any transaction from which the director derived an improper
personal benefit.
As a result, neither ConocoPhillips nor its stockholders have the right,
through stockholders' derivative suits on ConocoPhillips' behalf, to recover
monetary damages against a director for breach of fiduciary duty as a director,
including breaches resulting from grossly negligent behavior, except in the
situations described above.
DELAWARE ANTI-TAKEOVER LAW
ConocoPhillips is a Delaware corporation and is subject to Section 203 of
the Delaware General Corporation Law, which regulates corporate acquisitions.
Section 203 prevents an "interested stockholder," which is defined generally as
a person owning 15% or more of a corporation's voting stock, or any affiliate or
associate of that person, from engaging in a broad range of "business
combinations" with the corporation for three years after becoming an interested
stockholder unless:
- the board of directors of the corporation had previously approved
either the business combination or the transaction that resulted in
the stockholder's becoming an interested stockholder;
- upon completion of the transaction that resulted in the
stockholder's becoming an interested stockholder, that person owned
at least 85% of the voting stock of the corporation outstanding at
the time the transaction commenced, excluding shares owned by
persons who are directors and also officers and shares owned in
employee stock plans in which participants do not have the right to
determine confidentially whether shares held subject to the plan
will be tendered in a tender or exchange offer; or
- following the transaction in which that person became an interested
stockholder, the business combination is approved by the board of
directors of the corporation and holders of at least two-thirds of
the outstanding voting stock not owned by the interested
stockholder.
Under Section 203, the restrictions described above also do not apply to
specific business combinations proposed by an interested stockholder following
the announcement or notification of designated extraordinary transactions
involving the corporation and a person who had not been an interested
stockholder during the previous three years or who became an interested
stockholder with the approval of a majority of the corporation's directors, if
such extraordinary transaction is approved or not opposed by a majority of the
directors who were directors prior to any person becoming an interested
stockholder during the previous three years or were recommended for election or
elected to succeed such directors by a majority of such directors.
Section 203 may make it more difficult for a person who would be an
interested stockholder to effect various business combinations with a
corporation for a three-year period.
DESCRIPTION OF WARRANTS
ConocoPhillips may issue warrants to purchase any combination of debt
securities, common stock, preferred stock, rights or other securities of
ConocoPhillips or any other entity. ConocoPhillips may issue warrants
independently or together with other securities. Warrants sold with other
securities may be attached to or separate from the other securities.
ConocoPhillips will issue warrants under one or more warrant agreements between
it and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants ConocoPhillips is
offering will include specific terms relating to the offering. We will file the
form of any warrant agreement with the SEC, and you should read the
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warrant agreement for provisions that may be important to you. The prospectus
supplement will include some or all of the following terms:
- the title of the warrants;
- the aggregate number of warrants offered;
- the designation, number and terms of the debt securities, common
stock, preferred stock, rights or other securities purchasable upon
exercise of the warrants, and procedures by which the number of
securities purchasable may be adjusted;
- the exercise price of the warrants;
- the dates or periods during which the warrants are exercisable;
- the designation and terms of any securities with which the warrants
are issued;
- if the warrants are issued as a unit with another security, the
date, if any, on and after which the warrants and the other security
will be separately transferable;
- if the exercise price is not payable in U.S. dollars, the foreign
currency, currency unit or composite currency in which the exercise
price is denominated;
- any minimum or maximum amount of warrants that may be exercised at
any one time; and
- any terms, procedures and limitations relating to the
transferability, exchange or exercise of the warrants.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
ConocoPhillips may elect to offer shares of its preferred stock
represented by depositary shares. The shares of any series of the preferred
stock underlying the depositary shares will be deposited under a separate
deposit agreement between ConocoPhillips and a bank or trust company we will
name in the prospectus supplement.
Subject to the terms of the deposit agreement, each holder of a depositary
share will be entitled, proportionately, to all the rights, preferences and
privileges of the preferred stock represented by that depositary share,
including dividend, voting, redemption, conversion, exchange and liquidation
rights. The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. Each receipt will represent the applicable interest
in a number of shares of a particular series of the preferred stock, which we
will describe in the prospectus supplement.
We have summarized below selected provisions of the deposit agreement, the
related depositary shares and depositary receipts evidencing those shares. This
summary is not complete. We will file the form of deposit agreement and the form
of depositary receipts with the SEC before ConocoPhillips issues any depositary
shares, and you should read those documents for provisions that may be important
to you.
A holder of depositary shares will be entitled to receive the whole number
of shares of preferred stock underlying those depositary shares. Holders will
not be entitled to receive fractional shares. If the depositary receipts
delivered by the holder evidence a number of depositary shares in excess of the
whole number of shares to be withdrawn, the depositary will deliver to that
holder at the same time a new depositary receipt for the excess number of
depositary shares.
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DIVIDENDS AND OTHER DISTRIBUTIONS
The depositary will distribute all cash dividends or other cash
distributions received with respect to the preferred stock to the record holders
of depositary receipts in proportion to the number of depositary shares owned by
those holders.
If there is a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary receipts
in proportion, insofar as possible, to the number of depositary shares owned by
those holders. If the depositary determines that it is not feasible to make such
a distribution, it may, with ConocoPhillips' approval, adopt any method that it
deems equitable and practicable to effect the distribution, including a sale of
the property and distribution of the net proceeds from the sale to the holders.
The amount distributed in any of the above cases will be reduced by any
amount ConocoPhillips or the depositary is required to withhold on account of
taxes.
CONVERSION AND EXCHANGE
If any preferred stock underlying the depositary shares is subject to
provisions relating to its conversion or exchange as described in the prospectus
supplement, each record holder of depositary shares will have the right or
obligation to convert or exchange those depositary shares in accordance with
those provisions.
REDEMPTION OF DEPOSITARY SHARES
Whenever ConocoPhillips redeems a share of preferred stock held by the
depositary, the depositary will redeem on the same redemption date a
proportionate number of depositary shares representing the shares of preferred
stock redeemed. The redemption price per depositary share will be equal to the
aggregate redemption price payable with respect to the number of shares of
preferred stock underlying the depositary shares. If fewer than all the
depositary shares are to be redeemed, the depositary shares to be redeemed will
be selected by lot or proportionately as ConocoPhillips may determine.
VOTING
Upon receipt of notice of any meeting at which the holders of the
preferred stock underlying the depositary shares are entitled to vote, the
depositary will mail the information contained in the notice to the record
holders of the depositary receipts. Each record holder of the depositary
receipts on the record date, which will be the same date as the record date for
the preferred stock, may then instruct the depositary as to the exercise of the
voting rights pertaining to the number of shares of preferred stock underlying
that holder's depositary shares. The depositary will try, as far as practicable,
to vote the number of shares of preferred stock underlying the depositary shares
in accordance with the instructions, and ConocoPhillips will agree to take all
reasonable action that the depositary deems necessary to enable the depositary
to do so. The depositary will abstain from voting the preferred stock to the
extent that it does not receive specific written instructions from holders of
depositary shares representing the preferred stock.
RECORD DATE
Whenever:
- any cash dividend or other cash distribution becomes payable, any
distribution other than cash is made, or any rights, preferences or
privileges are offered with respect to the preferred stock, or
- the depositary receives notice of any meeting at which holders of
preferred stock are entitled to vote or of which holders of
preferred stock are entitled to notice, or of the mandatory
conversion of or any election by ConocoPhillips to call for the
redemption of any preferred stock,
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the depositary will in each instance fix a record date, which will be the same
as the record date for the preferred stock, for the determination of the holders
of depositary receipts:
- who will be entitled to receive the dividend, distribution, rights,
preferences or privileges or the net proceeds of any sale, or
- who will be entitled to give instructions for the exercise of voting
rights at any such meeting or to receive notice of the meeting or
the redemption or conversion.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
ConocoPhillips and the depositary may at any time agree to amend the form
of depositary receipt and any provision of the deposit agreement. However, any
amendment that adversely alters the rights of holders of depositary shares in
any material respect will not be effective unless the amendment has been
approved by the holders of at least a majority of the depositary shares then
outstanding. The deposit agreement may be terminated by ConocoPhillips or by the
depositary only if all outstanding depositary shares have been redeemed or if a
final distribution on the underlying preferred stock has been made to the
holders of the depositary shares in connection with the liquidation, dissolution
or winding up of ConocoPhillips.
CHARGES OF DEPOSITARY
ConocoPhillips will pay all charges of the depositary, including:
- charges in connection with the initial deposit of the preferred
stock;
- the initial issuance of the depositary receipts;
- the distribution of information to the holders of depositary
receipts with respect to matters on which preferred stock is
entitled to vote; and
- withdrawals of the preferred stock by the holders of depositary
receipts or upon redemption or conversion of the preferred stock.
Holders of depositary shares will pay taxes (including any transfer taxes) and
other governmental charges and any other charges expressly provided in the
deposit agreement to be at the expense of those holders.
RESIGNATION AND REMOVAL OF DEPOSITARY
The depositary may at any time resign or be removed by ConocoPhillips. Any
resignation or removal will become effective upon the acceptance by the
depositary's successor of its appointment. If ConocoPhillips has not appointed a
successor depositary and the successor depositary has not accepted its
appointment within 60 days after the depositary delivered a resignation notice
to ConocoPhillips, the depositary may terminate the deposit agreement.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
ConocoPhillips may issue stock purchase contracts, including contracts
obligating holders to purchase from ConocoPhillips, and ConocoPhillips to sell
to the holders, or for ConocoPhillips to issue in exchange for other securities,
a specified number of shares of ConocoPhillips common stock or preferred stock
(or a range of numbers of shares in accordance with a predetermined formula) at
a future date or dates or upon the occurrence of specified events. The price per
share of common stock or preferred stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a specific
formula set forth in the stock purchase contracts.
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ConocoPhillips may issue the stock purchase contracts separately or as a
part of units, often known as stock purchase units, consisting of a stock
purchase contract and any combination of:
- senior debt securities or subordinated debt securities of
ConocoPhillips,
- debt obligations of third parties, including U.S. Treasury
securities, or
- trust preferred securities of a ConocoPhillips trust,
securing the holder's obligations to purchase the common stock or preferred
stock under the stock purchase contracts.
The stock purchase contracts may require ConocoPhillips to make periodic
payments to the holders of the stock purchase units or vice versa, and those
payments may be unsecured or prefunded on some basis. The stock purchase
contracts may require holders to secure their obligations in a specified manner,
and in specified circumstances ConocoPhillips may deliver newly issued prepaid
stock purchase contracts, often known as prepaid securities, upon release to a
holder of any collateral securing that holder's obligations under the original
stock purchase contract.
The applicable prospectus supplement will describe the terms of any stock
purchase contracts or stock purchase units and, if applicable, prepaid
securities. That description will not be complete. For more information, you
should review the stock purchase contracts and, if applicable, the collateral
arrangements and depositary arrangements relating to those stock purchase
contracts or stock purchase units and any prepaid securities and the document
under which the prepaid securities will be issued. We will file forms of these
documents with the SEC before ConocoPhillips issues any stock purchase contracts
or stock purchase units and, if applicable, prepaid securities.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
TRUST PREFERRED SECURITIES
GENERAL
Each ConocoPhillips trust may issue only one series of trust preferred
securities. The amended and restated declaration of trust of each trust will
authorize that trust to issue one series of trust preferred securities of that
trust. We have summarized selected provisions of the trust preferred securities
below. This summary is not complete. We have filed the form of amended and
restated declaration of trust providing for the trust preferred securities with
the SEC as an exhibit to the registration statement, and you should read that
document for provisions that may be important to you. Please read "About the
ConocoPhillips Trusts" for additional information about the trusts.
The prospectus supplement relating to trust preferred securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
- the designation of the trust preferred securities;
- the number of trust preferred securities issued by the trust;
- the annual distribution rate (or the method for determining the
rate), the distribution payment dates, the record dates for
distribution payments and the additional amounts, if any, that may
be payable with respect to the trust preferred securities;
- whether distributions will be cumulative and, if so, the dates from
which distributions will be cumulative;
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- the amounts that will be paid out of the assets of the trust to the
holders of trust preferred securities upon dissolution, winding-up
or termination of the trust;
- any repurchase or redemption provisions;
- any additional voting rights of the trust preferred securities;
- terms for any conversion or exchange of the trust preferred
securities or the debt securities of ConocoPhillips held by that
trust into other securities;
- terms for any distribution of the debt securities to the holders of
the trust preferred securities; and
- any rights to defer distributions on the trust preferred securities
by extending the interest payment period on the debt securities.
We also will describe in the prospectus supplement the material United
States federal income tax considerations applicable to any offering of trust
preferred securities.
ConocoPhillips will guarantee the trust preferred securities to the extent
described under "Description of the Preferred Securities Guarantees."
VOTING
Holders of trust preferred securities will have limited voting rights,
relating only to the modification of the trust preferred securities and the
exercise of a trust's rights as holder of the debt securities and the preferred
securities guarantee. Holders of trust preferred securities will not be able to
appoint, remove or replace trustees, except in limited circumstances, or to
increase or decrease the number of trustees, because these rights will be vested
in the holder of the common securities of the trust. ConocoPhillips will own,
directly or indirectly, all of the common securities of each trust.
DISTRIBUTIONS
Under each declaration of trust, the property trustee must make
distributions on the trust preferred securities of a trust to the extent that
the property trustee has cash on hand in the applicable property account to
permit such payment. The only funds available for distribution to the holders of
the trust preferred securities of a trust will be those received by the property
trustee on the debt securities held by the trust. If ConocoPhillips does not
make payments on the debt securities, the property trustee will not make
corresponding distributions on the trust preferred securities. Under each
declaration of trust, if and to the extent ConocoPhillips does make payments on
the debt securities, the property trustee will be obligated to make
distributions on the preferred and common securities of such trust on a pro rata
basis.
ConocoPhillips will guarantee payment of distributions on the trust
preferred securities of a trust as and to the extent described under " -- Trust
Preferred Securities Guarantees." A guarantee covers distributions and other
payments on the applicable trust preferred securities only if and to the extent
that ConocoPhillips has made a payment to the property trustee on the applicable
debt securities. If an event of default under the related declaration of trust
has occurred and is continuing, any funds available to make payments will be
paid first to the holders of the trust preferred securities pro rata based on
the aggregate liquidation amount of trust preferred securities held by those
holders in relation to the aggregate liquidation amount of all the outstanding
trust preferred securities. In that case, the holder of common securities of a
trust would receive payments only after satisfaction of all amounts owed to the
holders of trust preferred securities.
EVENTS OF DEFAULT
If an event of default under the declaration of trust has occurred and is
continuing, the holders of a majority in liquidation amount of the trust
preferred securities may direct the property trustee to enforce the available
rights
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under the related declaration of trust, including rights available to the
property trustee as a holder of the applicable series of debt securities. If the
property trustee fails to enforce those rights, any holder of the related trust
preferred securities may provide written notice to the property trustee that the
holder will enforce those rights and, 30 days after submitting that request, the
holder may enforce those rights directly against ConocoPhillips to the fullest
extent permitted by law without first instituting any legal proceeding against
the property trustee or any other person.
If an event of default under the applicable declaration of trust has
occurred and is continuing and results from ConocoPhillips' failure to make
payments on the applicable series of debt securities when due, then any holder
of the trust preferred securities may directly institute a proceeding to enforce
those payments on the debt securities in an amount corresponding to the
aggregate liquidation amount of that holder's trust preferred securities. If a
holder brings a direct action, ConocoPhillips will be entitled to that holder's
rights under the applicable declaration of trust to the extent of any payment
made by ConocoPhillips to that holder. EXCEPT AS EXPRESSLY PROVIDED IN THE
PRECEDING SENTENCES OR IN THE APPLICABLE PROSPECTUS SUPPLEMENT, THE HOLDERS OF
THE TRUST PREFERRED SECURITIES WILL NOT BE ABLE TO EXERCISE DIRECTLY ANY OTHER
REMEDY AVAILABLE TO THE HOLDERS OF THE APPLICABLE SERIES OF DEBT SECURITIES.
TRUST PREFERRED SECURITIES GUARANTEES
ConocoPhillips will fully and unconditionally guarantee payments on the
trust preferred securities as described in this section. This guarantee covers
the following payments:
- periodic cash distributions on the trust preferred securities out of
funds held by the property trustee of the trust;
- payments on liquidation of each trust; and
- payments on redemption of trust preferred securities of each trust.
ConocoPhillips will appoint The Bank of New York, as guarantee trustee, to
hold the guarantee for the benefit of the holders of trust preferred securities.
We have summarized selected provisions of the guarantees below. This summary is
not complete. We have filed the form of guarantee with the SEC as an exhibit to
the registration statement, and you should read that document for provisions
that may be important to you.
ConocoPhillips will irrevocably and unconditionally agree to pay holders
of trust preferred securities in full the following amounts to the extent not
paid by the trust:
- any accumulated and unpaid distributions on the trust preferred
securities and any redemption price for trust preferred securities
called for redemption by the trust, if and to the extent that
ConocoPhillips has made corresponding payments on the debt
securities to the property trustee of the trust;
- payments upon the dissolution, winding-up or termination of the
trust equal to the lesser of:
- the liquidation amount plus all accumulated and unpaid
distributions on the trust preferred securities to the extent
the trust has funds legally available for those payments, and
- the amount of assets of the trust remaining legally available
for distribution to the holders of trust preferred securities
in liquidation of the trust.
ConocoPhillips will not be required to make these liquidation payments if:
- the trust distributes the debt securities to the holders of
trust preferred securities in exchange for their trust
preferred securities; or
- the trust redeems the trust preferred securities in full upon
the maturity or redemption of the debt securities.
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ConocoPhillips may satisfy its obligation to make a guarantee payment
either by making payment directly to the holders of trust preferred securities
or to the guarantee trustee for remittance to the holders or by causing the
applicable trust to make the payment to them.
Each guarantee is a guarantee from the time of issuance of the applicable
series of trust preferred securities. THE GUARANTEE ONLY COVERS, HOWEVER,
DISTRIBUTIONS AND OTHER PAYMENTS ON TRUST PREFERRED SECURITIES IF AND TO THE
EXTENT THAT CONOCOPHILLIPS HAS MADE CORRESPONDING PAYMENTS ON THE DEBT
SECURITIES TO THE APPLICABLE PROPERTY TRUSTEE. IF CONOCOPHILLIPS DOES NOT MAKE
THOSE CORRESPONDING PAYMENTS ON THE DEBT SECURITIES, THE TRUST WILL NOT HAVE
FUNDS AVAILABLE FOR PAYMENTS AND THAT TRUSTEE WILL NOT MAKE DISTRIBUTIONS ON THE
TRUST PREFERRED SECURITIES.
ConocoPhillips' obligations under the declaration of trust for each trust,
the guarantees, the debt securities and the associated indenture taken together
will provide a full and unconditional guarantee of payments due on the trust
preferred securities.
COVENANTS OF CONOCOPHILLIPS
In each guarantee, ConocoPhillips will agree that, as long as any trust
preferred securities issued by the applicable trust are outstanding,
ConocoPhillips will not make the payments and distributions described below if:
- it is in default on its guarantee payments or other payment obligations
under the related guarantee;
- any event of default under the applicable declaration of trust has
occurred and is continuing; or
- ConocoPhillips has elected to defer payments of interest on the related
debt securities by extending the interest payment period and that
deferral period is continuing.
In these circumstances, ConocoPhillips will agree that it will not:
- make any payments on or repay, repurchase or redeem any debt security
of ConocoPhillips that ranks equally with or junior to the debt
securities;
- make any guarantee payments on any guarantee by ConocoPhillips of the
debt securities of any of its subsidiaries if that guarantee ranks
equally with or junior to the debt securities; or
- declare or pay any dividends on, or redeem, purchase, acquire or make a
distribution or liquidation payment with respect to, any capital stock
of ConocoPhillips, other than:
- dividends or distributions in its capital stock or options, warrants
or rights to subscribe for or purchase its capital stock;
- transactions relating to ConocoPhillips' stockholder rights plan;
- as a result of a reclassification of its capital stock or the
exchange or conversion of one class or series of its capital stock
for another class or series of its share capital;
- purchases of fractional interests in shares of its capital stock
pursuant to the conversion or exchange provisions of the capital
stock or the security being converted or exchanged; and
- purchases or acquisitions of its capital stock in connection with
the satisfaction by it of its obligations under any employee
stock-based compensation or benefit plan, dividend reinvestment plan
or stock purchase plan.
In addition, as long as trust preferred securities issued by any trust are
outstanding, ConocoPhillips will agree that it will:
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- remain the sole direct or indirect owner of all the outstanding common
securities of that trust, except as permitted by the applicable
declaration of trust;
- permit the common securities of that trust to be transferred only as
permitted by the declaration of trust; and
- use reasonable efforts to cause that trust to continue to be treated as
a grantor trust for United States federal income tax purposes, except
in connection with a distribution of debt securities to the holders of
trust preferred securities as provided in the declaration of trust, in
which case the trust would be dissolved.
AMENDMENTS AND ASSIGNMENT
ConocoPhillips and the guarantee trustee may amend each guarantee without
the consent of any holder of trust preferred securities if the amendment does
not adversely affect the rights of the holders in any material respect. In all
other cases, ConocoPhillips and the guarantee trustee may amend each guarantee
only with the prior approval of the holders of a majority in liquidation amount
of the trust preferred securities issued by the applicable trust. The manner in
which ConocoPhillips will obtain that approval will be described in the
prospectus supplement.
ConocoPhillips may assign its obligations under the guarantees only in
connection with a consolidation, merger or asset sale involving ConocoPhillips
permitted under the indenture governing the debt securities.
TERMINATION OF THE GUARANTEE
Each guarantee will terminate upon:
- full payment of the redemption price of all trust preferred securities
of the applicable trust;
- distribution of the debt securities, or any securities into which those
debt securities are convertible, to the holders of the trust preferred
securities and common securities of that trust in exchange for all the
securities issued by that trust; or
- full payment of the amounts payable upon liquidation of that trust.
Each guarantee will, however, continue to be effective or will be
reinstated if any holder of trust preferred securities must repay any amounts
paid on those trust preferred securities or under the guarantee.
STATUS OF THE GUARANTEE
ConocoPhillips' obligations under each guarantee will be unsecured and
effectively junior to all debt and preferred stock of its subsidiaries. We will
specify in the prospectus supplement the ranking of each guarantee with respect
to ConocoPhillips' capital stock and other liabilities, including other
guarantees. BY YOUR ACCEPTANCE OF THE TRUST PREFERRED SECURITIES, YOU AGREE TO
ANY SUBORDINATION PROVISIONS AND OTHER TERMS OF THE RELATED GUARANTEE.
Each guarantee will be deposited with the guarantee trustee to be held for
the benefit of the holders of the trust preferred securities. The guarantee
trustee will have the right to enforce the guarantee on behalf of those holders.
In most cases, the holders of a majority in liquidation amount of the trust
preferred securities issued by the applicable trust will have the right to
direct the time, method and place of:
- conducting any proceeding for any remedy available to the applicable
guarantee trustee; or
- exercising any trust or other power conferred upon that guarantee
trustee under the applicable guarantee.
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Each guarantee will constitute a guarantee of payment and not merely of
collection. This means that the guarantee trustee may institute a legal
proceeding directly against ConocoPhillips to enforce the payment rights under
the guarantee without first instituting a legal proceeding against any other
person or entity.
If the guarantee trustee fails to enforce the guarantee or ConocoPhillips
fails to make a guarantee payment, a holder of trust preferred securities may
institute a legal proceeding directly against ConocoPhillips to enforce that
holder's rights under that guarantee without first instituting a legal
proceeding against the applicable trust, the guarantee trustee or any other
person or entity.
PERIODIC REPORTS UNDER GUARANTEE
ConocoPhillips will be required to provide annually to the guarantee
trustee a statement as to its performance of its obligations and its compliance
with all conditions under the guarantees.
DUTIES OF GUARANTEE TRUSTEE
The guarantee trustee normally will perform only those duties specifically
set forth in the applicable guarantee. The guarantee does not contain any
implied covenants. If a default occurs on a guarantee, the guarantee trustee
will be required to use the same degree of care and skill in exercise of its
powers under the guarantee as a prudent person would exercise or use under the
circumstances in the conduct of that person's own affairs. The guarantee trustee
will exercise any of its rights or powers under the guarantee at the request or
direction of holders of the applicable series of trust preferred securities only
if it is offered security and indemnity satisfactory to it.
GOVERNING LAW
New York law will govern the guarantees.
RELATIONSHIP AMONG THE TRUST PREFERRED SECURITIES, DEBT SECURITIES AND TRUST
PREFERRED SECURITIES GUARANTEE
When taken together, the terms of the trust preferred securities of a
ConocoPhillips trust, the debt securities held by that trust and the related
preferred securities guarantee provide a full and unconditional guarantee by
ConocoPhillips of the payments due on the trust preferred securities. The
following summary briefly explains the interrelationship between the trust
preferred securities, the debt securities and the guarantee.
THE TRUST WILL BE ABLE TO MAKE PAYMENTS ON THE TRUST PREFERRED SECURITIES ONLY
IF CONOCOPHILLIPS MAKES PAYMENTS ON THE DEBT SECURITIES.
As long as ConocoPhillips makes interest and other payments when due on
the debt securities, the trust will have sufficient funds to make distribution
and other payments when due on the trust preferred securities for the following
reasons:
- the trust will hold debt securities in an aggregate principal amount
equal to the sum of the aggregate stated liquidation amount of the
trust preferred securities and the common securities of the trust;
- the interest rate and payment dates of the debt securities will match
the distribution rate and payment dates of the trust preferred
securities and the common securities of the trust;
- the trustees may not cause or permit the trust to engage in any
activity that is not consistent with its limited purposes of:
- issuing and selling the trust preferred securities and the common
securities of the trust;
- investing the proceeds from the sale of those securities in a
specific series of ConocoPhillips' debt securities; and
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- engaging in only such other activities as are necessary or
incidental to issuing its securities and purchasing and holding
ConocoPhillips' debt securities and as are otherwise specifically
authorized in the declaration of trust; and
- ConocoPhillips has agreed to pay for all of the trust's debts and
obligations, other than with respect to the trust preferred and trust
common securities, and costs and expenses, including the fees and
expenses of the trustees.
CONOCOPHILLIPS WILL GUARANTEE THAT PAYMENTS WILL BE MADE ON THE TRUST PREFERRED
SECURITIES IF CONOCOPHILLIPS MAKES PAYMENTS ON THE DEBT SECURITIES.
If ConocoPhillips makes interest or other payments on the debt securities,
the property trustee will be obligated to make corresponding distribution or
other payments on the trust preferred securities. ConocoPhillips will guarantee
such payments if the trust fails to make them. The guarantee only covers
distributions and other payments on the trust preferred securities if and to the
extent ConocoPhillips has made corresponding payments on the debt securities.
The guarantee trustee will have the right to enforce the guarantee on behalf of
the holders of the trust preferred securities if ConocoPhillips fails to make
any required guarantee payments. If the guarantee trustee fails to enforce the
guarantee, you may institute a legal proceeding directly against ConocoPhillips
to enforce the guarantee trustee's rights under the guarantee. If ConocoPhillips
fails to make a guarantee payment, you may also institute a legal proceeding
directly against ConocoPhillips to enforce the guarantee.
THE PROPERTY TRUSTEE MAY INSTITUTE LEGAL PROCEEDINGS AGAINST CONOCOPHILLIPS IF
CONOCOPHILLIPS FAILS TO MAKE PAYMENTS ON THE DEBT SECURITIES.
If ConocoPhillips does not make interest or other payments on the debt
securities, the trust will not have funds available to make the corresponding
distribution or other payments on the trust preferred securities. The property
trustee, as the holder of the debt securities, will have the right to enforce
ConocoPhillips' obligations on the debt securities if an event of default under
the debt securities occurs. In addition, the holders of a majority in
liquidation amount of the trust preferred securities will have the right to
direct the property trustee with respect to certain matters under the
declaration of trust. If the property trustee fails to enforce its rights, any
holder of trust preferred securities may, to the fullest extent permitted by law
and after a period of 30 days has elapsed from such holder's written request to
the property trustee to enforce such rights, institute a legal proceeding
against ConocoPhillips to enforce such rights.
PLAN OF DISTRIBUTION
We may sell the securities in and outside the United States through
underwriters or dealers, directly to purchasers or through agents. The
prospectus supplement will include the following information:
- the terms of the offering;
- the names of any underwriters or agents;
- the purchase price of the securities from us and, if the purchase price
is not payable in U.S. dollars, the currency or composite currency in
which the purchase price is payable;
- the net proceeds to us from the sale of the securities;
- any delayed delivery arrangements;
- any underwriting discounts, commissions and other items constituting
underwriters' compensation;
- the initial public offering price;
33
- any discounts or concessions allowed or reallowed or paid to dealers;
and
- any commissions paid to agents.
SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale of securities, the underwriters will
acquire the securities for their own account. The underwriters may resell the
securities from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to conditions, and the underwriters will
be obligated to purchase all the securities if they purchase any of them. The
underwriters may change from time to time any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if such offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, these activities may be discontinued
at any time.
If we use dealers in the sale of securities, we will sell the securities
to them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. The dealers
participating in any sale of the securities may be deemed to be underwriters
within the meaning of the Securities Act of 1933 with respect to any sale of
those securities. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In that event, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the securities, and we will describe any
commissions payable by us to the agent. Unless we inform you otherwise in the
prospectus supplement, any agent will agree to use its reasonable best efforts
to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale of those securities. We will describe the terms of
any such sales in the prospectus supplement.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
34
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against civil liabilities, including liabilities under the
Securities Act of 1933, or to contribute with respect to payments that the
agents, dealers or underwriters may be required to make. Agents, dealers and
underwriters may engage in transactions with us or perform services for us in
the ordinary course of their businesses.
LEGAL MATTERS
The validity of the offered securities and other matters in connection
with any offering of the securities will be passed upon for us by Wayne C.
Byers, ConocoPhillips' Senior Counsel, or another of ConocoPhillips' lawyers,
and Baker Botts L.L.P., Houston, Texas, our outside counsel, and for us and the
ConocoPhillips trusts by Richards, Layton & Finger, P.A., Wilmington, Delaware.
Any underwriters will be advised about legal matters relating to any offering by
their own legal counsel.
EXPERTS
The financial statements and the financial statement schedule incorporated
in this prospectus by reference to Conoco's Annual Report on Form 10-K for the
year ended December 31, 2001, have been so incorporated in reliance on the
reports of PricewaterhouseCoopers LLP, independent accountants, given on the
authority of said firm as experts in auditing and accounting.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements and schedule of Phillips included in Phillips' Annual
Report on Form 10-K for the year ended December 31, 2001, as amended, as set
forth in their report, which is incorporated by reference in this prospectus.
Phillips' financial statements and schedule are incorporated by reference in
reliance on Ernst & Young LLP's report, given on their authority as experts in
accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth expenses payable by ConocoPhillips in
connection with the issuance and distribution of the securities being
registered. All the amounts shown are estimates, except for the SEC registration
fee.
SEC registration fee................................... $ 460,000
Printing expenses...................................... *
Legal fees and expenses................................ *
Accounting fees and expenses........................... *
Fees and expenses of trustee and counsel............... *
Rating agency fees..................................... *
Miscellaneous.......................................... *
---------
Total............................................ $ *
=========
- ------------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
ConocoPhillips, Conoco and Phillips
Delaware law permits a corporation to adopt a provision in its certificate
of incorporation eliminating or limiting the personal liability of a director,
but not an officer in his or her capacity as such, to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except that such provision shall not limit the liability of a director for (1)
any breach of the director's duty of loyalty to the corporation or its
stockholders, (2) acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (3) liability under
section 174 of the Delaware General Corporation Law for unlawful payment of
dividends or stock purchases or redemptions, or (4) any transaction from which
the director derived an improper personal benefit. ConocoPhillips' restated
certificate of incorporation provides that, to the fullest extent of Delaware
law, no ConocoPhillips director shall be liable to ConocoPhillips or
ConocoPhillips stockholders for monetary damages for breach of fiduciary duty as
a director. Each of Conoco's and Phillips' certificate of incorporation has
similar provisions with respect to its directors.
Under Delaware law, a corporation may indemnify any individual made a
party or threatened to be made a party to any type of proceeding, other than an
action by or in the right of the corporation, because he or she is or was an
officer, director, employee or agent of the corporation or was serving at the
request of the corporation as an officer, director, employee or agent of another
corporation or entity against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such proceeding:
(1) if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation; or
(2) in the case of a criminal proceeding, he or she had no reasonable cause to
believe that his or her conduct was unlawful. A corporation may indemnify any
individual made a party or threatened to be made a party to any threatened,
pending or completed action or suit brought by or in the right of the
corporation because he or she was an officer, director, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other entity,
against expenses actually and reasonably incurred in connection with such action
or suit if he or she acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation,
provided that such indemnification will be denied if the individual is found
liable to the corporation unless, in such a case, the court determines the
person is nonetheless entitled to indemnification for such expenses. A
corporation must indemnify a present or former director or officer who
successfully defends himself or herself in a proceeding to which he or she was a
party because he or she was a director or officer of the corporation against
expenses actually and reasonably incurred by him or her. Expenses incurred by an
officer or director, or any employees or agents as deemed appropriate by the
board of directors, in defending civil or criminal proceedings may be paid by
the corporation in
II-1
advance of the final disposition of such proceedings upon receipt of an
undertaking by or on behalf of such director, officer, employee or agent to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the corporation. The Delaware law regarding
indemnification and expense advancement is not exclusive of any other rights
which may be granted by ConocoPhillips' restated certificate of incorporation or
bylaws, a vote of stockholders or disinterested directors, agreement or
otherwise.
Under the Delaware General Corporation Law, termination of any proceeding
by conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that such person is prohibited from being
indemnified.
ConocoPhillips' bylaws provide for the indemnification and advancement of
expenses of any individual made, or threatened to be made, a party to an action,
suit or proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that he or she is or was a director or officer of
ConocoPhillips or is or was a director or officer of ConocoPhillips serving as
an officer, director, employee or agent of any other enterprise at the request
of ConocoPhillips. Phillips' bylaws have similar provisions. Conoco's bylaws
provide for such indemnification and advancement of expenses if such officer or
director acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the best interests of Conoco and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his or her
conduct was unlawful. However, neither ConocoPhillips, Conoco nor Phillips will
indemnify a director or officer who commences any proceeding (except for
proceedings to enforce rights of indemnification), unless the commencement of
that proceeding was authorized or consented to by the respective company's board
of directors.
ConocoPhillips has agreed to indemnify each present and former director
and officer of Conoco, Phillips or any of their subsidiaries, against all costs
or expenses, judgments, fines, losses, claims, damages or liabilities in
connection with any claim, action, suit, proceeding or investigation brought
within six years of the closing of the mergers of Conoco and Phillips with
subsidiaries of ConocoPhillips (collectively, the "merger") for acts or
omissions, existing or occurring before the merger, to the fullest extent
permitted under applicable law.
Subject to a cap on premiums, for a period of six years after the merger,
ConocoPhillips has agreed to maintain a policy of directors' and officers'
liability insurance for acts and omissions occurring before the merger with
coverage in an amount and scope at least as favorable as Conoco's and Phillips'
existing directors' and officers' liability insurance coverage.
Notwithstanding any other provision, the treatment of past and present
directors, officers and employees of either Conoco or Phillips and their
respective subsidiaries with respect to elimination of liability,
indemnification, advancement of expenses and liability insurance under the
merger agreement shall be, in the aggregate, no less advantageous to intended
beneficiaries thereof than the corresponding treatment of the past and present
directors, officers and employees of the other company and its subsidiaries.
ConocoPhillips Trusts
Prior to the issuance of trust preferred securities by a ConocoPhillips
trust, the existing declaration of trust pursuant to which such trust is created
will be amended and restated to provide that no trustee, or affiliate of any
trustee, or officer, director, shareholder, member, partner, employee,
representative or agent of any trustee, or employee or agent of such trust or of
any of its affiliates (each, an "Indemnified Person") will be liable for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of such trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by such amended and restated
declaration of trust or by law, except that an Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Indemnified
Person's gross negligence (or, in the case of the property trustee of such
trust, negligence) or willful misconduct with respect to such acts or omissions.
In addition, such amended and restated declaration of trust shall provide
that, to the fullest extent permitted by applicable law, ConocoPhillips shall
indemnify and hold harmless each Indemnified Person from and against any loss,
liability, expense, damage or claim incurred by such Indemnified Person arising
out of or in connection with the acceptance or administration of the trust under
such declaration of trust or by reason of any act or omission
II-2
performed or omitted by such Indemnified Person in good faith on behalf of such
trust and in a manner such Indemnified Person reasonably believed to be within
the scope of authority conferred on such Indemnified Person by such declaration
of trust, except that no Indemnified Person shall be entitled to be indemnified
in respect of any loss, liability, expense, damage or claim incurred by such
Indemnified Person by reason of gross negligence (or, in the case of the
property trustee of the trust, negligence) or willful misconduct with respect to
such acts or omissions.
ITEM 16. EXHIBITS*
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1 -- Agreement and Plan of Merger, dated as of November 18, 2001, among
Conoco Inc., Phillips Petroleum Company, ConocoPhillips (formerly
named CorvettePorsche Corp.), P Merger Corp. (formerly named
Porsche Merger Corp.) and C Merger Corp. (formerly named Corvette
Merger Corp.) (incorporated by reference to Annex A to the Joint
Proxy Statement/Prospectus included in the Registration Statement
of ConocoPhillips on Form S-4, Registration No. 333-74798 (the
"Registration Statement")).
4.1 -- Restated Certificate of Incorporation of ConocoPhillips
(incorporated by reference to Exhibit 3.1 to the Current Report of
ConocoPhillips on Form 8-K filed with the SEC on August 30, 2002,
SEC File No. 000-49987 (the "Form 8-K")).
4.2 -- By-laws of ConocoPhillips (incorporated by reference to Exhibit
3.3 to the Form 8-K).
4.3 -- Specimen certificate representing common stock, par value $.01 per
share, of ConocoPhillips (incorporated by reference to Exhibit 4.1
to the Registration Statement).
4.4 -- Rights Agreement, dated as of June 30, 2002, between
ConocoPhillips and Mellon Investor Services LLC, as rights agent,
which includes as Exhibit A the form Certificate of Designations
of Series A Junior Participating Preferred Stock, as Exhibit B the
form of Rights Certificate and as Exhibit C the Summary of Rights
to Purchase Preferred Stock (incorporated by reference to Exhibit
4.1 to the Form 8-K).
4.5 -- Indenture, dated as of October 9, 2002, among ConocoPhillips, as
issuer, Conoco Inc. and Phillips Petroleum Company, as guarantors,
and The Bank of New York, as trustee, in respect of senior debt
securities of ConocoPhillips (the "Senior Indenture").
4.6 -- Form of Indenture between ConocoPhillips and The Bank of New York,
as trustee, in respect of subordinated debt securities of
ConocoPhillips (the "Subordinated Indenture").
4.7.1 -- Declaration of Trust of ConocoPhillips Trust I.
4.7.2 -- Declaration of Trust of ConocoPhillips Trust II.
4.8 -- Form of Amended and Restated Declaration of Trust.
4.9.1 -- Certificate of Trust of ConocoPhillips Trust I.
4.9.2 -- Certificate of Trust of ConocoPhillips Trust II.
4.10 -- Form of Trust Preferred Security (included in Exhibit 4.8).
4.11 -- Form of Trust Preferred Securities Guarantee of ConocoPhillips.
II-3
5.1 -- Opinion of Baker Botts L.L.P. with respect to legality of the
securities offered hereby (other than the trust preferred
securities of ConocoPhillips Trust I and ConocoPhillips Trust II).
5.2.1 -- Opinion of Richards, Layton & Finger, P.A. with respect to the
legality of the trust preferred securities of ConocoPhillips Trust
I.
5.2.2 -- Opinion of Richards, Layton & Finger, P.A. with respect to the
legality of the trust preferred securities of ConocoPhillips Trust
II.
+12.1 -- Computation of ratio of earnings to fixed charges of Conoco Inc.
+12.2 -- Computation of ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividends
of Phillips Petroleum Company.
+12.3 -- Computation of pro forma ratio of earnings to fixed charges and
pro forma ratio of earnings to combined fixed charges and
preferred stock dividends of ConocoPhillips.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of Baker Botts L.L.P. (contained in Exhibit 5.1).
23.4 -- Consent of Richards, Layton & Finger, P.A. (contained in Exhibits
5.2.1 and 5.2.2).
24.1 -- Powers of Attorney of directors and officers of Conoco Inc. and
Phillips Petroleum Company (included on the signature pages of the
Registration Statement).
24.2 -- Powers of Attorney of directors and officers of ConocoPhillips.
25.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
trustee under the Senior Indenture.
25.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
trustee under the Subordinated Indenture.
25.3.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
property trustee, relating to ConocoPhillips Trust I.
25.3.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
property trustee, relating to ConocoPhillips Trust II.
25.4.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
guarantee trustee, relating to ConocoPhillips Trust I.
25.4.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
guarantee trustee, relating to ConocoPhillips Trust II.
- -----------------
* ConocoPhillips will file as an exhibit to a Current Report on Form 8-K (i)
any underwriting, remarketing or agency agreement relating to the
securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock, warrants, depositary shares or stock
purchase contracts, (iii) any additional
II-4
required opinions of counsel with respect to legality of the securities
offered hereby and (iv) any required opinion of counsel to ConocoPhillips
as to certain tax matters relative to the securities offered hereby.
+ To be filed by amendment.
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that the undertakings set forth in paragraphs
(a)(1)(i) and (a)(1)(ii) above do not apply if the information
required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by a Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrants hereby undertake that, for purposes of
determining any liability under the Securities Act, each filing of a
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrants pursuant to the foregoing provisions, or otherwise, each
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other
than the payment by a Registrant of expenses incurred or paid by a
director, officer or controlling person of such Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in
II-5
connection with the securities being registered, such Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
(d) The undersigned Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the Registrants pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed
to be part of this Registration Statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on November
12, 2002.
CONOCOPHILLIPS
By: /s/ John A. Carrig
------------------------------------
John A. Carrig
Executive Vice President, Finance,
and Chief Financial Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON NOVEMBER 12, 2002.
SIGNATURE TITLE
--------- -----
/s/ J. J. Mulva* Chief Executive Officer, President and Director
- -------------------------------------- (Principal Executive Officer)
J. J. Mulva
/s/ John A. Carrig Executive Vice President, Finance, and
- -------------------------------------- Chief Financial Officer
John A. Carrig (Principal Financial Officer)
/s/ Rand C. Berney* Vice President and Controller
- -------------------------------------- (Principal Accounting Officer)
Rand C. Berney
/s/ Archie W. Dunham** Chairman of the Board and Director
- --------------------------------------
Archie W. Dunham
/s/ Richard A. Auchinleck** Director
- --------------------------------------
Richard A. Auchinleck
/s/ Norman R. Augustine* Director
- --------------------------------------
Norman R. Augustine
/s/ David L. Boren* Director
- --------------------------------------
David L. Boren
/s/ Kenneth M. Duberstein** Director
- --------------------------------------
Kenneth M. Duberstein
/s/ Ruth R. Harkin** Director
- --------------------------------------
Ruth R. Harkin
/s/ Larry D. Horner* Director
- --------------------------------------
Larry D. Horner
/s/ Charles C. Krulak** Director
- --------------------------------------
Charles C. Krulak
/s/ Frank A. McPherson** Director
- --------------------------------------
Frank A. McPherson
/s/ William K. Reilly** Director
- --------------------------------------
William K. Reilly
/s/ William R. Rhodes** Director
- --------------------------------------
William R. Rhodes
/s/ J. Stapleton Roy* Director
- --------------------------------------
J. Stapleton Roy
/s/ Randall L. Tobias* Director
- --------------------------------------
Randall L. Tobias
/s/ Victoria J. Tschinkel* Director
- --------------------------------------
Victoria J. Tschinkel
/s/ Kathryn C. Turner* Director
- --------------------------------------
Kathryn C. Turner
*By: /s/ John A. Carrig
----------------------------------
John A. Carrig
Attorney-in-fact
**By: /s/ Rick A. Harrington
---------------------------------
Rick A. Harrington
Attorney-in-fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on November
12, 2002.
CONOCO INC.
By: /s/ John A. Carrig
---------------------------------------
John A. Carrig
Executive Vice President, Finance, and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints John A. Carrig, Rick A.
Harrington and Rand C. Berney, and each of them, severally, as his or her true
and lawful attorney or attorneys-in-fact and agent or agents, each of whom shall
be authorized to act with or without the other, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead in
his or her capacity as a director or officer or both, as the case may be, of
Conoco Inc., to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any registration statement of the
type contemplated by Rule 462(b) under the Securities Act of 1933, as amended
(the "Securities Act"), and all documents or instruments necessary or
appropriate to enable Conoco Inc. to comply with the Securities Act, and to file
the same with the Securities and Exchange Commission, with full power and
authority to each of said attorneys-in-fact and agents to do and perform in the
name and on behalf of each such director or officer, or both, as the case may
be, each and every act whatsoever that is necessary, appropriate or advisable in
connection with any or all of the above-described matters and to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON NOVEMBER 12, 2002.
SIGNATURE TITLE
--------- -----
/s/ J. J. Mulva President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
J. J. Mulva
/s/ John A. Carrig Executive Vice President, Finance, and
- ------------------------------ Chief Financial Officer and Director
John A. Carrig (Principal Financial Officer)
/s/ Rand C. Berney Vice President and Controller
- ------------------------------ (Principal Accounting Officer)
Rand C. Berney
/s/ Rick A. Harrington Director
- ------------------------------
Rick A. Harrington
/s/ Thomas C. Knudson Director
- ------------------------------
Thomas C. Knudson
/s/ John E. Lowe Director
- ------------------------------
John E. Lowe
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on November
12, 2002.
PHILLIPS PETROLEUM COMPANY
By: /s/ John A. Carrig
---------------------------------------
John A. Carrig
Executive Vice President, Finance, and
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below appoints John A. Carrig, Rick A.
Harrington and Rand C. Berney, and each of them, severally, as his or her true
and lawful attorney or attorneys-in-fact and agent or agents, each of whom shall
be authorized to act with or without the other, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead in
his or her capacity as a director or officer or both, as the case may be, of
Phillips Petroleum Company, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and any registration
statement of the type contemplated by Rule 462(b) under the Securities Act of
1933, as amended (the "Securities Act"), and all documents or instruments
necessary or appropriate to enable Phillips Petroleum Company to comply with the
Securities Act, and to file the same with the Securities and Exchange
Commission, with full power and authority to each of said attorneys-in-fact and
agents to do and perform in the name and on behalf of each such director or
officer, or both, as the case may be, each and every act whatsoever that is
necessary, appropriate or advisable in connection with any or all of the
above-described matters and to all intents and purposes as he or she might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED ON NOVEMBER 12, 2002.
SIGNATURE TITLE
--------- -----
/s/ J. J. Mulva President and Chief Executive Officer
- ------------------------------ (Principal Executive Officer)
J. J. Mulva
/s/ John A. Carrig Executive Vice President, Finance, and
- ------------------------------ Chief Financial Officer and Director
John A. Carrig (Principal Financial Officer)
/s/ Rand C. Berney Vice President and Controller
- ------------------------------ (Principal Accounting Officer)
Rand C. Berney
/s/ Rick A. Harrington Director
- ------------------------------
Rick A. Harrington
/s/ Thomas C. Knudson Director
- ------------------------------
Thomas C. Knudson
/s/ John E. Lowe Director
- ------------------------------
John E. Lowe
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on November
12, 2002.
CONOCOPHILLIPS TRUST I
By: CONOCOPHILLIPS, as Sponsor
By: /s/ John A. Carrig
---------------------------------------
John A. Carrig
Executive Vice President, Finance, and
Chief Financial Officer
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the undersigned Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Houston, State of Texas, on November
12, 2002.
CONOCOPHILLIPS TRUST II
By: CONOCOPHILLIPS, as Sponsor
By: /s/ John A. Carrig
--------------------------------------
John A. Carrig
Executive Vice President, Finance, and
Chief Financial Officer
EXHIBIT INDEX*
EXHIBIT NO. DESCRIPTION
- ----------- -----------
2.1 -- Agreement and Plan of Merger, dated as of November 18, 2001, among
Conoco Inc., Phillips Petroleum Company, ConocoPhillips (formerly
named CorvettePorsche Corp.), P Merger Corp. (formerly named
Porsche Merger Corp.) and C Merger Corp. (formerly named Corvette
Merger Corp.) (incorporated by reference to Annex A to the Joint
Proxy Statement/Prospectus included in the Registration Statement
of ConocoPhillips on Form S-4, Registration No. 333-74798 (the
"Registration Statement")).
4.1 -- Restated Certificate of Incorporation of ConocoPhillips
(incorporated by reference to Exhibit 3.1 to the Current Report of
ConocoPhillips on Form 8-K filed with the SEC on August 30, 2002,
SEC File No. 000-49987 (the "Form 8-K")).
4.2 -- By-laws of ConocoPhillips (incorporated by reference to Exhibit
3.3 to the Form 8-K).
4.3 -- Specimen certificate representing common stock, par value $.01 per
share, of ConocoPhillips (incorporated by reference to Exhibit 4.1
to the Registration Statement).
4.4 -- Rights Agreement, dated as of June 30, 2002, between
ConocoPhillips and Mellon Investor Services LLC, as rights agent,
which includes as Exhibit A the form Certificate of Designations
of Series A Junior Participating Preferred Stock, as Exhibit B the
form of Rights Certificate and as Exhibit C the Summary of Rights
to Purchase Preferred Stock (incorporated by reference to Exhibit
4.1 to the Form 8-K).
4.5 -- Indenture, dated as of October 9, 2002, among ConocoPhillips, as
issuer, Conoco Inc. and Phillips Petroleum Company, as guarantors,
and The Bank of New York, as trustee, in respect of senior debt
securities of ConocoPhillips (the "Senior Indenture").
4.6 -- Form of Indenture between ConocoPhillips and The Bank of New York,
as trustee, in respect of subordinated debt securities of
ConocoPhillips (the "Subordinated Indenture").
4.7.1 -- Declaration of Trust of ConocoPhillips Trust I.
4.7.2 -- Declaration of Trust of ConocoPhillips Trust II.
4.8 -- Form of Amended and Restated Declaration of Trust.
4.9.1 -- Certificate of Trust of ConocoPhillips Trust I.
4.9.2 -- Certificate of Trust of ConocoPhillips Trust II.
4.10 -- Form of Trust Preferred Security (included in Exhibit 4.8).
4.11 -- Form of Trust Preferred Securities Guarantee of ConocoPhillips.
5.1 -- Opinion of Baker Botts L.L.P. with respect to legality of the
securities offered hereby (other than the trust preferred
securities of ConocoPhillips Trust I and ConocoPhillips Trust II).
5.2.1 -- Opinion of Richards, Layton & Finger, P.A. with respect to the
legality of the trust preferred securities of ConocoPhillips Trust
I.
5.2.2 -- Opinion of Richards, Layton & Finger, P.A. with respect to the
legality of the trust preferred securities of ConocoPhillips Trust
II.
+12.1 -- Computation of ratio of earnings to fixed charges of Conoco Inc.
+12.2 -- Computation of ratio of earnings to fixed charges and ratio of
earnings to combined fixed charges and preferred stock dividends
of Phillips Petroleum Company.
+12.3 -- Computation of pro forma ratio of earnings to fixed charges and
pro forma ratio of earnings to combined fixed charges and
preferred stock dividends of ConocoPhillips.
23.1 -- Consent of PricewaterhouseCoopers LLP.
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of Baker Botts L.L.P. (contained in Exhibit 5.1).
23.4 -- Consent of Richards, Layton & Finger, P.A. (contained in Exhibits
5.2.1 and 5.2.2).
24.1 -- Powers of Attorney of directors and officers of Conoco Inc. and
Phillips Petroleum Company (included on the signature pages of the
Registration Statement).
24.2 -- Powers of Attorney of directors and officers of ConocoPhillips.
25.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
trustee under the Senior Indenture.
25.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
trustee under the Subordinated Indenture.
25.3.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
property trustee, relating to ConocoPhillips Trust I.
25.3.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
property trustee, relating to ConocoPhillips Trust II.
25.4.1 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
guarantee trustee, relating to ConocoPhillips Trust I.
25.4.2 -- Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939, as amended, of The Bank of New York, as
guarantee trustee, relating to ConocoPhillips Trust II.
- -----------------
* ConocoPhillips will file as an exhibit to a Current Report on Form 8-K (i)
any underwriting, remarketing or agency agreement relating to the
securities offered hereby, (ii) the instruments setting forth the terms of
any debt securities, preferred stock, warrants, depositary shares or stock
purchase contracts, (iii) any additional required opinions of counsel with
respect to legality of the securities offered hereby and (iv) any required
opinion of counsel to ConocoPhillips as to certain tax matters relative to
the securities offered hereby.
+ To be filed by amendment.
EXHIBIT 4.5
[CONFORMED]
================================================================================
CONOCOPHILLIPS
as Issuer
CONOCO INC.
and
PHILLIPS PETROLEUM COMPANY
as Guarantors
and
THE BANK OF NEW YORK
as Trustee
---------------------------------
Indenture
Dated as of October 9, 2002
---------------------------------
Debt Securities
================================================================================
CONOCOPHILLIPS
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 9, 2002
--------------------
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ----------- ---------
Section 310 (a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08, 7.10
Section 311 (a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... Not Applicable
Section 312 (a).......................................................................... 2.07
(b).......................................................................... 11.03
(c).......................................................................... 11.03
Section 313 (a).......................................................................... 7.06
(b).......................................................................... 7.06
(c).......................................................................... 7.06
(d).......................................................................... 7.06
Section 314 (a).......................................................................... 4.03, 4.04
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 11.04
(c)(2)....................................................................... 11.04
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 11.05
Section 315 (a).......................................................................... 7.01(b)
(b).......................................................................... 7.05
(c).......................................................................... 7.01(a)
(d).......................................................................... 7.01(c)
(d)(1)....................................................................... 7.01(c)(1)
(d)(2)....................................................................... 7.01(c)(2)
(d)(3)....................................................................... 7.01(c)(3)
(e).......................................................................... 6.11
Section 316 (a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... Not Applicable
(a)(last sentence)........................................................... 2.11
(b).......................................................................... 6.07
Section 317 (a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.06
Section 318 (a).......................................................................... 11.01
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
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PAGE
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................1
SECTION 1.01 Definitions............................................................................1
SECTION 1.02 Other Definitions......................................................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act......................................8
SECTION 1.04 Rules of Construction..................................................................8
ARTICLE II THE SECURITIES.........................................................................................9
SECTION 2.01 Amount Unlimited; Issuable in Series...................................................9
SECTION 2.02 Denominations.........................................................................11
SECTION 2.03 Forms Generally.......................................................................11
SECTION 2.04 Execution, Authentication, Delivery and Dating........................................12
SECTION 2.05 Registrar and Paying Agent............................................................14
SECTION 2.06 Paying Agent to Hold Money in Trust...................................................14
SECTION 2.07 Holder Lists..........................................................................15
SECTION 2.08 Transfer and Exchange.................................................................15
SECTION 2.09 Replacement Securities................................................................16
SECTION 2.10 Outstanding Securities................................................................16
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.........16
SECTION 2.12 Temporary Securities..................................................................17
SECTION 2.13 Cancellation..........................................................................17
SECTION 2.14 Payments; Defaulted Interest..........................................................17
SECTION 2.15 Persons Deemed Owners.................................................................18
SECTION 2.16 Computation of Interest...............................................................18
SECTION 2.17 Global Securities; Book-Entry Provisions..............................................18
ARTICLE III REDEMPTION...........................................................................................20
SECTION 3.01 Applicability of Article..............................................................20
SECTION 3.02 Notice to the Trustee.................................................................20
SECTION 3.03 Selection of Securities To Be Redeemed................................................21
SECTION 3.04 Notice of Redemption..................................................................21
SECTION 3.05 Effect of Notice of Redemption........................................................22
SECTION 3.06 Deposit of Redemption Price...........................................................22
SECTION 3.07 Securities Redeemed or Purchased in Part..............................................22
SECTION 3.08 Purchase of Securities................................................................23
SECTION 3.09 Mandatory and Optional Sinking Funds..................................................23
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.................................23
SECTION 3.11 Redemption of Securities for Sinking Fund.............................................23
ARTICLE IV COVENANTS.............................................................................................24
SECTION 4.01 Payment of Securities.................................................................24
SECTION 4.02 Maintenance of Office or Agency.......................................................25
ii
SECTION 4.03 SEC Reports; Financial Statements.....................................................25
SECTION 4.04 Compliance Certificate................................................................26
SECTION 4.05 Corporate Existence...................................................................26
SECTION 4.06 Waiver of Stay, Extension or Usury Laws...............................................26
SECTION 4.07 Additional Amounts....................................................................26
SECTION 4.08 Limitation on Liens...................................................................27
SECTION 4.09 Limitation on Sale/Leaseback Transactions.............................................27
ARTICLE V SUCCESSORS.............................................................................................28
SECTION 5.01 Limitations on Mergers and Consolidations.............................................28
SECTION 5.02 Successor Person Substituted..........................................................29
ARTICLE VI DEFAULTS AND REMEDIES.................................................................................29
SECTION 6.01 Events of Default.....................................................................29
SECTION 6.02 Acceleration..........................................................................31
SECTION 6.03 Other Remedies........................................................................32
SECTION 6.04 Waiver of Defaults....................................................................32
SECTION 6.05 Control by Majority...................................................................32
SECTION 6.06 Limitations on Suits..................................................................33
SECTION 6.07 Rights of Holders to Receive Payment..................................................33
SECTION 6.08 Collection Suit by Trustee............................................................33
SECTION 6.09 Trustee May File Proofs of Claim......................................................34
SECTION 6.10 Priorities............................................................................34
SECTION 6.11 Undertaking for Costs.................................................................35
ARTICLE VII TRUSTEE..............................................................................................35
SECTION 7.01 Duties of Trustee.....................................................................35
SECTION 7.02 Rights of Trustee.....................................................................36
SECTION 7.03 May Hold Securities...................................................................37
SECTION 7.04 Trustee's Disclaimer..................................................................37
SECTION 7.05 Notice of Defaults....................................................................37
SECTION 7.06 Reports by Trustee to Holders.........................................................38
SECTION 7.07 Compensation and Indemnity............................................................38
SECTION 7.08 Replacement of Trustee................................................................39
SECTION 7.09 Successor Trustee by Merger, etc......................................................40
SECTION 7.10 Eligibility; Disqualification.........................................................41
SECTION 7.11 Preferential Collection of Claims Against the Company or a Guarantor..................41
ARTICLE VIII DISCHARGE OF INDENTURE..............................................................................41
SECTION 8.01 Termination of the Company's and the Guarantors' Obligations..........................41
SECTION 8.02 Application of Trust Money............................................................45
SECTION 8.03 Repayment to Company or Guarantor.....................................................45
SECTION 8.04 Reinstatement.........................................................................45
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS................................................................46
SECTION 9.01 Without Consent of Holders............................................................46
SECTION 9.02 With Consent of Holders...............................................................47
iii
SECTION 9.03 Compliance with Trust Indenture Act...................................................49
SECTION 9.04 Revocation and Effect of Consents.....................................................49
SECTION 9.05 Notation on or Exchange of Securities.................................................50
SECTION 9.06 Trustee to Sign Amendments, etc.......................................................50
ARTICLE X GUARANTEE..............................................................................................50
SECTION 10.01 Guarantee.............................................................................50
SECTION 10.02 Proceedings Against Guarantor.........................................................51
SECTION 10.03 Subrogation...........................................................................52
SECTION 10.04 Guarantee for Benefit of Holders......................................................52
ARTICLE XI MISCELLANEOUS.........................................................................................52
SECTION 11.01 Trust Indenture Act Controls..........................................................52
SECTION 11.02 Notices...............................................................................52
SECTION 11.03 Communication by Holders with Other Holders...........................................54
SECTION 11.04 Certificate and Opinion as to Conditions Precedent....................................54
SECTION 11.05 Statements Required in Certificate or Opinion.........................................54
SECTION 11.06 Rules by Trustee and Agents...........................................................55
SECTION 11.07 Legal Holidays........................................................................55
SECTION 11.08 No Recourse Against Others............................................................55
SECTION 11.09 Governing Law.........................................................................55
SECTION 11.10 No Adverse Interpretation of Other Agreements.........................................55
SECTION 11.11 Successors............................................................................55
SECTION 11.12 Severability..........................................................................56
SECTION 11.13 Counterpart Originals.................................................................56
SECTION 11.14 Table of Contents, Headings, etc......................................................56
iv
INDENTURE dated as of October 9, 2002 among ConocoPhillips, a
Delaware corporation (the "Company"), Conoco Inc., a Delaware corporation
formerly incorporated under the name Conoco Energy Company ("Conoco"), Phillips
Petroleum Company, a Delaware corporation ("Phillips" and, together with Conoco,
the "Guarantors"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
or any Guarantor, as the case may be, with respect to certain taxes, assessments
or other governmental charges imposed on certain Holders and that are owing to
such Holders.
"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 purposes of this definition,
"control" of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Attributable Debt," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended). In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
1
"Board of Directors," when used with reference to the Company
or a Guarantor, means the Board of Directors of the Company or such Guarantor,
as the case may be, or any committee thereof duly authorized, with respect to
any particular matter, to act by or on behalf of the Board of Directors of the
Company or such Guarantor, as the case may be.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or a Guarantor to have
been duly adopted by the Board of Directors of the Company or such Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"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; provided, however, that for purposes
of any provision contained herein which is required by the TIA, "Company" shall
also mean each other obligor (if any), other than a Guarantor, on the Securities
of a series.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company and, in the case of a Company Order pursuant to Section 2.01 or
2.04, in the name of each Guarantor by an Officer of such Guarantor, and
delivered to the Trustee.
"Consolidated Adjusted Net Assets" means the total amount of
assets less (1) all current liabilities (excluding the amount of those
liabilities which are by their terms extendable or renewable at the option of
the obligor to a date more than 12 months after the date as of which the amount
is being determined and current maturities of long-term debt) and (2) total
prepaid expenses and deferred charges, all as set forth on the most recent
quarterly balance sheet of the Company and its consolidated subsidiaries and
determined in accordance with GAAP.
"Corporate Trust Office of the Trustee" means the office of
the Trustee located at 101 Barclay Street, Floor 8W, New York, New York 10286,
Attention: Corporate Trust Administration, and as may be located at such other
address as the Trustee may give notice to the Company and the Guarantors.
"Debt" means all notes, bonds, debentures or other similar
evidences of debt for money borrowed.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with respect
to the Securities of such series, until a successor shall have been appointed
and become such pursuant to the applicable provision of this Indenture, and
thereafter "Depositary" shall mean or include such successor.
2
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Funded Debt" means all Debt (including Debt incurred under
any revolving credit, letter of credit or working capital facility) that matures
by its terms, or that is renewable at the option of any obligor thereon, to a
date more than one year after the date on which such Debt is originally
incurred.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Security" means a Security that is issued in global
form in the name of the Depositary with respect thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct obligations of the government that issues the currency in
which the Securities of the series are payable for the payment of which the full
faith and credit of such government is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government.
"Guarantee" shall mean the guarantee of the Company's
obligations under the Securities by a Guarantor as provided in Article X.
"Guarantor" means each Person named as a "Guarantor" in the
first paragraph of this instrument, in each case until a successor to such
Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the provisions hereof, and includes the terms of a
particular series of Securities established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, shall have the meaning assigned to such term in the Security as
contemplated by Section 2.01.
3
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York; Houston, Texas or
a Place of Payment are authorized or obligated by law, regulation or executive
order to remain closed.
"Lien" means any mortgage, pledge, lien or security interest.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person and, in the case of an Officers' Certificate of the Company
pursuant to Section 2.01 or 2.04, by an Officer of each Guarantor.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company, the Guarantor or the Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Permitted Liens" means:
(i) Liens existing on the date of first issuance of a series
of Securities;
(ii) Liens on property or assets of, or any shares of stock
of, or other equity interests in, or Debt of, any Person existing at
the time such Person becomes a Subsidiary or a Principal Domestic
Subsidiary or at the time such Person is merged into or consolidated
with the Company or any Subsidiary or at the time of a sale, lease or
other disposition of the properties of a Person (or a division thereof)
as an entirety or substantially as an entirety to the Company or a
Subsidiary;
(iii) Liens on assets (including improvements and accessions
thereto and proceeds thereof) (a) existing at the time of acquisition
thereof, (b) securing all or any portion of the cost of acquiring,
constructing, improving, developing or expanding such assets or (c)
securing Debt incurred prior to, at the time of, or within 24 months
after, the later of the acquisition, the completion of construction,
improvement, development or expansion or the commencement of commercial
operation of such assets, for the purpose (in the case of this clause
(c)) of (x) financing all or any part of the purchase price of such
4
assets or (y) financing all or any part of the cost of construction,
improvement, development or expansion of any such assets;
(iv) Liens on specific assets to secure Debt incurred to
provide funds for all or any part of the cost of exploration, drilling
or development of such assets;
(v) Liens in favor of the Company or any Subsidiary;
(vi) Liens securing industrial development, pollution control
or other revenue bonds issued or guaranteed by the United States of
America, or any State, or any department, agency, instrumentality or
political subdivision of either;
(vii) Liens on personal property, other than shares of stock
or Debt of any Principal Domestic Subsidiary, securing loans maturing
not more than one year from the date of the creation thereof;
(viii) Liens on any Principal Property arising in connection
with the sale of accounts receivable resulting from the sale of oil or
gas at the wellhead;
(ix) statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate
proceedings; and
(x) any extensions, substitutions, replacements or renewals in
whole or in part of a Lien enumerated in clauses (i) through (ix) above
or any Debt secured by such a Lien; provided that (a) such new Lien
shall be limited to all or part of the same property that secured the
original Lien, plus improvements on such property, and (b) the
principal amount of Debt secured by such Lien and not otherwise
authorized by clauses (i) through (ix) above or otherwise permitted
does not materially exceed the principal amount of Debt so secured plus
any premium or fee payable in connection with any such extension,
substitution, replacement or renewal.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of that
series are payable as specified in accordance with Section 2.01 subject to the
provisions of Section 4.02.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
"Principal Domestic Subsidiary" means each Guarantor and any
Subsidiary (i) that has substantially all of its assets located in the United
States, (ii) that owns a Principal
5
Property and (iii) in which the Company's direct or indirect capital investment,
together with the outstanding balance of (a) any loans and advances made to such
Subsidiary by the Company or any other Subsidiary and (b) any debt of such
Subsidiary guaranteed by the Company or any other Subsidiary, exceeds
$100,000,000.
"Principal Property" means any oil or gas producing property
located in the United States, onshore or offshore, or any refinery or
manufacturing plant (excluding any transportation or marketing facilities or
assets) located in the United States, in each case owned by the Company or a
Subsidiary, except any oil or gas producing property, refinery or plant that, in
the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its consolidated
subsidiaries.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Responsible Officer" means any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Rule 144A Securities" means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
"Sale/Leaseback Transaction" means any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, other than (1) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years, (2) leases
between the Company and a Subsidiary or between Subsidiaries, (3) leases of
Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the
commencement of commercial operation of the Principal Property, and (4)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, as
custodian with respect to the Securities of such series, or any successor entity
thereto.
6
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a Person at least a majority 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. For the purposes of this definition, "voting stock" means
stock having voting power for the election 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.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date hereof.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series means the Trustee with respect
to Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories and possessions,
which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
DEFINED
TERM IN SECTION
- ---- ----------
"Bankruptcy Custodian"...................................................... 6.01
"Conversion Event".......................................................... 6.01
"covenant defeasance"....................................................... 8.01
"Event of Default".......................................................... 6.01
"Exchange Rate"............................................................. 2.11
"Judgment Currency"......................................................... 6.10
"legal defeasance".......................................................... 8.01
"mandatory sinking fund payment"............................................ 3.09
"optional sinking fund payment"............................................. 3.09
"Paying Agent".............................................................. 2.05
"Registrar"................................................................. 2.05
"Required Currency"......................................................... 6.10
"Successor"................................................................. 5.01
7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture (and
if the Indenture is not qualified under the TIA at that time, as if it were so
qualified unless otherwise provided). The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"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 indenture securities means the Company, any
Guarantor or any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this instrument to Articles and
Sections are references to the corresponding Articles
and Sections in and of this instrument.
8
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution of the Company, and
set forth, or determined in the manner provided, in an Officers' Certificate of
the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) if there is to be a limit, the 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 2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 and except for any
Securities which, pursuant to Section 2.04 or 2.17, are deemed never to
have been authenticated and delivered hereunder); provided, however,
that unless otherwise provided in the terms of the series, the
authorized aggregate principal amount of such series may be increased
before or after the issuance of any Securities of the series by a Board
Resolution (or action pursuant to a Board Resolution) to such effect;
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, whether beneficial owners of
interests in any such Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) the manner in which any interest payable on a temporary
Global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium
(if any) on the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the record date for the interest payable
on any Securities on any
9
Interest Payment Date, or if other than provided herein, the Person to
whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) if other than Dollars, the currency or currencies
(including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company, any Guarantor or any
other Person, in which payment of the principal of, premium (if any)
and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or
any Additional Amounts with respect to the Securities of the series are
to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies (including composite currencies) other than that
in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such
election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(13) if the amount of payments of principal of, premium (if
any) and interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
10
(15) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series and the related
Guarantees pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
or any Guarantor set forth in Article IV pertaining to the Securities
of the series;
(17) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible
into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities or any other
securities or property of the Company, any Guarantor or any other
Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such
conversion or exchange;
(19) whether the Securities of the series are to be entitled
to the benefit of Section 4.03(b) (and accordingly constitute Rule 144A
Securities); and
(20) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
2.03) set forth, or determined in the manner provided, in the Officers'
Certificate or Company Order referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action, together with such Board Resolution, shall be set forth in an Officers'
Certificate or certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or Company Order setting forth the terms of the series.
SECTION 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to
11
a Board Resolution of the Company or in one or more indentures supplemental
hereto. The Securities may have notations, legends or endorsements required by
law, securities exchange rule, the Company's certificate of incorporation,
bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). A copy of the Board
Resolution establishing the form or forms of Securities of any series shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 2.04 for the authentication and delivery of such
Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers executing such Securities, as
evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: _____________________________________
Authorized Signatory".
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on
behalf of the Company and, with respect to the Guarantees of the Securities, an
Officer of each Guarantor shall sign the Securities on behalf of such Guarantor,
in each case by manual or facsimile signature.
If an Officer of the Company or a Guarantor whose signature is
on a Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or the related Guarantees or be valid or obligatory for any purpose
until authenticated by the manual signature of an authorized signatory of the
Trustee, which signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company delivers such Security to the Trustee for
cancellation as provided in Section 2.13, together with a written statement
(which need not comply with Section 11.05 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture or the related Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series
executed by the Company and each
12
Guarantor to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities for original issue upon a Company Order for the
authentication and delivery of such Securities or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company
Order. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated, the name or names of the initial Holder or Holders and any other
terms of the Securities of such series not otherwise determined. If provided for
in such procedures, such Company Order may authorize (1) authentication and
delivery of Securities of such series for original issue from time to time, with
certain terms (including, without limitation, the Maturity dates or dates,
original issue date or dates and interest rate or rates) that differ from
Security to Security and (2) may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred
to above and the other documents required by Section 11.04), and (subject to
Section 7.01) shall be fully protected in relying upon:
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of
Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) that, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to
any conditions specified in such Opinion of Counsel, such
Securities and the related Guarantees will constitute valid
and binding obligations of the Company and the Guarantors,
respectively, enforceable against the Company and the
Guarantors, respectively, in accordance with their respective
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws in effect from
time to time affecting the rights of creditors generally, and
the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate and
Opinion of Counsel at the time of issuance of each such Security, but such
Officers' Certificate and Opinion of Counsel shall be delivered at or before the
time of issuance of the first Security of the series to be issued.
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The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Guarantor or an Affiliate
of the Company or any Guarantor.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where Securities
of such series may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company, any Guarantor or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company, a Guarantor or a
Subsidiary) shall have no further liability for the money. If the Company, a
Guarantor or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust
14
fund for the benefit of the Holders all money held by it as Paying Agent. Each
Paying Agent shall otherwise comply with TIA Section 317(b).
SECTION 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date with respect to such series of Securities, and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of Holders of
such series, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01:
When Securities of any series are presented to the Registrar
with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of
like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met; provided, however,
that the Securities presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form reasonably satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing, on which
instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company and the Guarantors shall execute and the Trustee shall authenticate
Securities at the Registrar's written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), 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 such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall
authenticate Securities in accordance with the provisions of Section 2.04.
Notwithstanding any other provisions of this Indenture to the contrary, the
Company shall not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Security being redeemed in part, or (b) any
Security during the period beginning 15 Business Days prior to the mailing of
notice of any offer to repurchase Securities of the series required pursuant to
the terms thereof or of redemption of Securities of a series to be redeemed and
ending at the close of business on the day of mailing.
15
SECTION 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if
the Holder of a Security claims that the Security has been destroyed, lost or
stolen and the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of such Security, the Company shall issue, the
Guarantors shall execute and the Trustee shall authenticate a replacement
Security of the same series if the Trustee's requirements are met. If 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. If required by the Trustee, any Guarantor or the
Company, such Holder must furnish an indemnity bond that is sufficient in the
judgment of the Trustee and the Company to protect the Company, each Guarantor,
the Trustee, any Agent or any authenticating agent from any loss that any of
them may suffer if a Security is replaced. The Company and the Trustee may
charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.10 as
not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company, a Guarantor or an Affiliate of the Company or a Guarantor holds the
Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury
Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02, (b) the principal amount of a Security denominated in
a foreign currency shall be the Dollar equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is certified for customs purposes by the Federal
Reserve Bank of New York (the "Exchange Rate") on the date of original issuance
of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent, as determined by the Company by
reference to the Exchange Rate on the date of original issuance of such
Security, of the amount
16
determined as provided in (a) above), of such Security and (c) Securities owned
by the Company, a Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, of a Guarantor or of such other obligor shall be
disregarded, except that, for the purpose of determining whether the Trustee
shall be protected in relying upon any such direction, amendment, supplement,
waiver or consent, only Securities that a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare, the Guarantors shall execute and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare, the Guarantors shall execute and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company or any Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, payment or redemption or for credit against any sinking
fund payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or
cancellation or for credit against any sinking fund. Unless the Company shall
direct in writing that canceled Securities be returned to it, after written
notice to the Company all canceled Securities held by the Trustee shall be
disposed of in accordance with the usual disposal procedures of the Trustee, and
the Trustee shall maintain a record of their disposal. The Company may not issue
new Securities to replace Securities that have been paid or that have been
delivered to the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01,
interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Persons who are registered Holders of that Security at the close of
business on the record date next preceding such Interest Payment Date, even if
such Securities are canceled after such record date and on or before such
Interest Payment Date. The Holder must surrender a Security to a Paying Agent to
collect principal payments. Unless otherwise provided with respect to the
Securities of any series, the Company will pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
in Dollars. Such amounts shall be payable at the offices of the Trustee or any
Paying Agent, provided that at the option of the Company, the Company may pay
such amounts (1) by wire transfer with respect to Global Securities or (2) by
check payable in such money mailed to a Holder's registered address with respect
to any Securities.
17
If the Company defaults in a payment of interest on the
Securities of any series, the Company shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest on the defaulted interest, in
each case at the rate provided in the Securities of such series and in Section
4.01. The Company may pay the defaulted interest to the Persons who are Holders
on a subsequent special record date. At least 15 days before any special record
date selected by the Company, the Company (or the Trustee, in the name of and at
the expense of the Company upon 20 days' prior written notice from the Company
setting forth such special record date and the interest amount to be paid) shall
mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The Company, the Guarantors, the Trustee, any Agent and any
authenticating agent may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payments
of principal of, premium (if any) or interest on or any Additional Amounts with
respect to such Security and for all other purposes. None of the Company, any
Guarantor, the Trustee, any Agent or any authenticating agent shall be affected
by any notice to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in such Security or in a
Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii)
otherwise in accordance with written instructions or such other written form of
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified in such Security or in the applicable Company Order. With
respect to the Securities of any series that are represented by a Global
Security, the Company and the Guarantors authorize the execution and delivery by
the Trustee of a letter of representations or other similar agreement or
instrument in the form customarily provided for by the Depositary appointed with
respect to
18
such Global Security. Any Global Security may be deposited with the Depositary
or its nominee, or may remain in the custody of the Trustee or the Security
Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar
agreement between the Trustee and the Depositary. If a Company Order has been,
or simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 11.05 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee or the Security
Custodian as its custodian, or under such Global Security, and the Depositary
may be treated by the Company, any Guarantor, the Trustee or the Security
Custodian and any agent of the Company, any Guarantor, the Trustee or the
Security Custodian as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of
a Global Security of a series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder of Securities of such series is
entitled to take under this Indenture or the Securities of such series and (ii)
nothing herein shall prevent the Company, any Guarantor, the Trustee or the
Security Custodian, or any agent of the Company, any Guarantor, the Trustee or
the Security Custodian, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or shall impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided
pursuant to Section 2.01: Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary. Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if, and only if,
either (1) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Security and a successor Depositary is not
appointed by the Company within 90 days of such notice, (2) an Event of Default
has occurred with respect to such series and is continuing and the Registrar has
received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver
Securities within 30 days of such request) or (3) the Company determines not to
have the Securities represented by a Global Security.
In connection with any transfer of a portion of the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interests in the Global Security to be
transferred, and the Company and the Guarantors shall execute, and the Trustee
upon receipt of a Company Order for the authentication and delivery of
Securities shall authenticate and deliver, one or more Securities of the same
series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Global Security shall be deemed to be
19
surrendered to the Trustee for cancellation, and the Company and the Guarantors
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interests in the Global Security, an equal aggregate principal amount of
Securities of authorized denominations.
Neither the Company, any Guarantor nor the Trustee will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary relating to such
Securities. Neither the Company, any Guarantor nor the Trustee shall be liable
for any delay by the related Global Security Holder or the Depositary in
identifying the beneficial owners, and each such Person may conclusively rely
on, and shall be protected in relying on, instructions from such Global Security
Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the
Securities to be issued).
The provisions of the last sentence of the third paragraph of
Section 2.04 shall apply to any Global Security if such Global Security was
never issued and sold by the Company and the Company or a Guarantor delivers to
the Trustee the Global Security together with written instructions (which need
not comply with Section 11.05 and need not be accompanied by an Opinion of
Counsel) with regard to the cancellation or reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01, payment of principal
of, premium (if any) and interest on and any Additional Amounts with respect to
any Global Security shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and the principal amount of Securities of such series to be redeemed. The
Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to
the Trustee an Officers' Certificate stating that such redemption will comply
with the provisions of this Indenture and of the Securities of such series. Any
such notice may be canceled at any time prior to the mailing of such notice of
such redemption to any Holder and shall thereupon be void and of no effect.
20
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series of a specified tenor 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 (and tenor) not previously called for
redemption, either pro rata, by lot or by such other method as the Trustee shall
deem fair and appropriate and that may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of Global Securities of
such series.
The Trustee shall promptly notify the Company and the
Registrar 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 purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any of the Securities redeemed or to be redeemed only in part, to
the portion of the principal amount thereof which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of
such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company and the Guarantors default in
making the redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Securities is to receive
payment of the Redemption Price upon surrender to the Paying Agent of
the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
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(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if
such is the case; and
(7) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price, but interest installments whose maturity
is on or prior to such Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant
record dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any
Redemption Date, the Company or a Guarantor shall deposit with the Trustee or
the Paying Agent (or, if the Company or such Guarantor is acting as the Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money in same day funds sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect to, the Securities or portions thereof
which are to be redeemed on that date, other than Securities or portions thereof
called for redemption on that date which have been delivered by the Company or a
Guarantor to the Trustee for cancellation.
If the Company or a Guarantor complies with the preceding
paragraph, then, unless the Company and the Guarantors default in the payment of
such Redemption Price, interest on the Securities to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for the right to
receive the Redemption Price upon surrender of such Securities. If any Security
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, any Additional Amounts, and, to the
extent lawful, accrued interest thereon shall, until paid, bear interest from
the Redemption Date at the rate specified pursuant to Section 2.01 or provided
in the Securities or, in the case of Original Issue Discount Securities, such
Securities' yield to maturity.
SECTION 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be
redeemed in part, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver to the
22
Holder of such Security without service charge a new Security or Securities, of
the same series and 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 that is not redeemed.
SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company, any Guarantor and any Affiliate of the Company or any Guarantor
may, subject to applicable law, at any time purchase or otherwise acquire
Securities in the open market or by private agreement. Any such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Guarantor may be delivered to the Trustee and, upon
such delivery, the indebtedness represented thereby shall be deemed to be
satisfied. Section 2.13 shall apply to all Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.10. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company or a Guarantor may deliver outstanding Securities
of a series (other than any previously called for redemption) and may apply as a
credit Securities of a series that have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such series of Securities; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate of
the Company specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 3.10 and will
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also deliver or cause to be delivered to the Trustee any Securities to be so
delivered. Failure of the Company to timely deliver or cause to be delivered
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute the election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable
Exchange Rate on the date of original issue of the applicable Securities) or a
lesser sum if the Company shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof
as aforesaid) is available. Not less than 30 days before each such sinking fund
payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent (other than the
Company, a Guarantor or a Subsidiary) holds on that date money deposited by the
Company or a Guarantor designated for and sufficient to pay all principal,
premium, interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium (if any), at a rate equal to the then applicable interest rate on the
Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and any Additional Amount (without regard to any
applicable grace period) at the same rate to the extent lawful.
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SECTION 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the Trustee,
the Registrar or the Paying Agent) where Securities of that series may be
presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the
Company or a Guarantor in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the Company by written
notice to the Trustee and the Guarantors, such office or agency shall be the
office of the Trustee in The City of New York, which on the date hereof is
located at 101 Barclay Street, Floor 8W, New York, New York 10286. The Company
will give prompt written notice to the Trustee and the Guarantors 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 and the Guarantors with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.03 SEC Reports; Financial Statements.
(a) If the Company or a Guarantor is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company or such
Guarantor, as the case may be, shall file with the Trustee, within 15 days after
it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company or such Guarantor is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. If this Indenture is qualified under the TIA,
but not otherwise, the Company and the Guarantors shall also comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee shall be for informational purposes only, and the
Trustee's receipt thereof 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 Officers'
Certificates or certificates delivered pursuant to Section 4.04).
(b) If neither the Company nor any Guarantor is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company and the
Guarantors shall furnish to all Holders of Rule 144A Securities and prospective
purchasers of Rule 144A Securities designated by the Holders of Rule 144A
Securities, promptly upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) promulgated under the Securities Act of
1933, as amended.
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SECTION 4.04 Compliance Certificate.
(a) Each of the Company and the Guarantors shall deliver to
the Trustee, within 120 days after the end of each fiscal year, a statement
signed by an Officer of the Company or such Guarantor, as the case may be, which
need not constitute an Officers' Certificate, complying with TIA Section
314(a)(4) and stating that in the course of performance by the signing Officer
of his duties as such Officer of the Company or such Guarantor, as the case may
be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Guarantor, as the case may be, of its
obligations under this Indenture, and further stating that to the best of his
knowledge the Company or such Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge and what action the Company or such Guarantor, as the
case may be, is taking or proposes to take with respect thereto).
(b) The Company or any Guarantor shall, so long as Securities
of any series are outstanding, deliver to the Trustee, forthwith upon any
Officer of the Company or such Guarantor, as the case may be, becoming aware of
any Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company or such
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V, each of the Company and the Guarantors
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence.
SECTION 4.06 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive it from paying all or any portion of the principal of or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) each of the Company
and the Guarantors hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.07 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any
26
Security of any series or the net proceeds received from the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for in this Section 4.07 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 4.07 and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
SECTION 4.08 Limitation on Liens.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, issue, assume or guarantee any Debt for borrowed money
secured by any Lien upon any Principal Property or any shares of stock or Debt
of any Principal Domestic Subsidiary (whether such Principal Property, shares of
stock or Debt is now owned or hereafter acquired) without making effective
provision whereby the Securities (together with, if the Company shall so
determine, any other Debt or other obligation of the Company or any Subsidiary)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) the Debt so secured for so long as such Debt is so secured. The
foregoing restrictions will not, however, apply to Debt secured by Permitted
Liens.
In addition, the Company and its Principal Domestic
Subsidiaries may, without securing the Securities, issue, assume or guarantee
Debt that would otherwise be subject to the foregoing restrictions in an
aggregate principal amount that, together with all other such Debt of the
Company and its Principal Domestic Subsidiaries that would otherwise be subject
to the foregoing restrictions (not including Debt permitted to be secured under
the definition of Permitted Liens) and the aggregate amount of Attributable Debt
deemed outstanding with respect to Sale/Leaseback Transactions (reduced by the
amount applied pursuant to Section 4.09(b)) does not at any one time exceed 10%
of Consolidated Adjusted Net Assets.
The following types of transactions shall not be deemed to
create "Debt" secured by "Liens" within the meaning of those terms as used in
this Indenture:
(a) the sale or other transfer of (i) oil, gas or other
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii)
any other interest in property of the character commonly referred to as
a "production payment"; and
(b) the mortgage or pledge of any property of the Company or
any Subsidiary in favor of the United States or any State, or any
department, agency, instrumentality or political subdivision of either,
to secure partial, progress, advance or other payments pursuant to the
provisions of any contract or statute.
SECTION 4.09 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, enter into any Sale/Leaseback Transaction with any
Person (other than the Company or a Subsidiary) unless:
27
(a) the Company or such Principal Domestic Subsidiary would be
entitled to incur Debt in a principal amount equal to the Attributable
Debt with respect to such Sale/Leaseback Transaction secured by a Lien
on the property subject to such Sale/Leaseback Transaction pursuant to
Section 4.08 without equally and ratably securing the Securities
pursuant to such covenant; or
(b) within a period commencing 12 months prior to the
consummation of such Sale/Leaseback Transaction and ending 12 months
after the consummation thereof, the Company or any Subsidiary shall
have applied an amount equal to all or a portion of the net proceeds of
such Sale/Leaseback Transaction (with any such amount not being so
applied to be subject to Section 4.09(a)):
(1) to the voluntary defeasance or retirement of any
Securities or any Funded Debt; or
(2) to the acquisition, exploration, drilling,
development, construction, improvement or expansion of one or
more Principal Properties.
For these purposes, the net proceeds of a Sale/Leaseback
Transaction means an amount equal to the greater of (i) the net proceeds of the
sale or transfer of the property leased in such Sale/Leaseback Transaction and
(ii) the fair value, as determined by the Board of Directors of the Company and
evidenced by a Board Resolution, of such property at the time of entering into
such Sale/Leaseback Transaction.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
Neither the Company nor any Guarantor shall, in any
transaction or series of transactions, consolidate with or merge into any
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to any Person (other than a consolidation or
merger of the Company and a Guarantor or of the Guarantors or a sale, lease,
conveyance, transfer or other disposition of all or substantially all of the
assets of the Company to a Guarantor or of a Guarantor to the Company or the
other Guarantor), unless:
(1) either (a) the Company or such Guarantor, as the case may
be, shall be the continuing Person or (b) the Person (if other than the
Company or such Guarantor) formed by such consolidation or into which
the Company or such Guarantor is merged, or to which such sale, lease,
conveyance, transfer or other disposition shall be made (collectively,
the "Successor"), is organized and validly existing under the laws of
the United States, any political subdivision thereof or any State
thereof or the District of Columbia, and expressly assumes by
supplemental indenture, in the case of the Company, the due and
punctual payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to all the Securities and the
performance of the Company's covenants and obligations under this
Indenture and the Securities, or, in the case of such Guarantor, the
performance of the Guarantee and such Guarantor's covenants and
obligations under this Indenture and the Securities;
28
(2) immediately after giving effect to such transaction or
series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(3) the Company or such Guarantor, as the case may be,
delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that the transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or a
Guarantor, as the case may be, or any sale, lease, conveyance, transfer or other
disposition of all or substantially all of the assets of the Company or such
Guarantor in accordance with Section 5.01, the Successor formed by such
consolidation or into or with which the Company or such Guarantor is merged or
to which such sale, lease, conveyance, transfer or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of the Company or such Guarantor, as the case may be, under this Indenture and
the Securities with the same effect as if such Successor had been named as the
Company or such Guarantor, as the case may be, herein and the predecessor
Company or Guarantor, in the case of a sale, conveyance, transfer or other
disposition, shall be released from all obligations under this Indenture, the
Securities and, in the case of a Guarantor, the Guarantee.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) there is a default in the payment of interest on
or any Additional Amounts with respect to any Security of that series
when the same becomes due and payable and such default continues for a
period of 30 days;
(2) there is a default in the payment of (A) the
principal of any Security of that series at its Maturity or (B) premium
(if any) on any Security of that series when the same becomes due and
payable;
(3) there is a default in the deposit of any sinking
fund payment, when and as due by the terms of a Security of that
series, and such default continues for a period of 30 days;
(4) the Company or any Guarantor fails to comply with
any of its other covenants or agreements in, or provisions of, the
Securities of such series or this Indenture (other than an agreement,
covenant or provision that has expressly been included in this
Indenture solely for the benefit of one or more series of Securities
other
29
than that series) which shall not have been remedied within the
specified period after written notice, as specified in the last
paragraph of this Section 6.01;
(5) the Company or any Guarantor pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company or any
Guarantor as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
any Guarantor or a Bankruptcy Custodian for all or
substantially all of the property of the Company or any
Guarantor, or
(C) orders the liquidation of the Company or any
Guarantor; or
(7) any other Event of Default provided with respect
to Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or 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 or Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01,
if the principal of, premium (if any) or interest on or Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are not
available to the Company or a Guarantor for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company or such Guarantor (a "Conversion Event"), each of the Company and the
Guarantors will be
30
entitled to satisfy its obligations to Holders of the Securities by making such
payment in Dollars in an amount equal to the Dollar equivalent of the amount
payable in such other currency, as determined by the Company or the Guarantor
making such payment, as the case may be, by reference to the Exchange Rate on
the date of such payment, or, if such rate is not then available, on the basis
of the most recently available Exchange Rate. Notwithstanding the foregoing
provisions of this Section 6.01, any payment made under such circumstances in
Dollars where the required payment is in a currency other than Dollars will not
constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company or a Guarantor shall give written notice thereof to the Trustee; and the
Trustee, promptly after receipt of such notice, shall give notice thereof in the
manner provided in Section 11.02 to the Holders. Promptly after the making of
any payment in Dollars as a result of a Conversion Event, the Company or the
Guarantor making such payment, as the case may be, shall give notice in the
manner provided in Section 11.02 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company and the Guarantors,
or the Holders of at least 25% in principal amount of the then outstanding
Securities of the series affected by such Default (or, in the case of a Default
under clause (4) of this Section 6.01, if outstanding Securities of other series
are affected by such Default, then at least 25% in principal amount of the then
outstanding Securities so affected) notify the Company, the Guarantors and the
Trustee, of the Default, and the Company or the applicable Guarantor, as the
case may be, fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If an Event of Default with respect to any Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company and the Guarantors, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by
such Event of Default (or, in the case of an Event of Default described in
clause (4) of Section 6.01, if outstanding Securities of other series are
affected by such Event of Default, then at least 25% in principal amount of the
then outstanding Securities so affected) by notice to the Company, the
Guarantors and the Trustee, may declare the principal of (or, if any such
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) and all accrued and
unpaid interest on all then outstanding Securities of such series or of all
series, as the case may be, to be due and payable. Upon any such declaration,
the amounts due and payable on the Securities shall be due and payable
immediately. If an Event of Default specified in clause (5) or (6) of Section
6.01 hereof occurs, such amounts shall ipso facto become and be immediately due
and payable without any declaration, notice or other act on the part of the
Trustee or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities of the series affected by such Event of Default or all
series, as the case may be, by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of or
premium or interest on or any Additional Amounts with
31
respect to the Securities) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to
Securities of that series (or of all series, as the case may be) have been cured
or waived, except nonpayment of principal, premium, interest or any Additional
Amounts that has become due solely because of the acceleration.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series or all series, as
the case may be, and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or all
series or a solicitation of consents in respect of Securities of such series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of such series or all series (but the
terms of such offer or solicitation may vary from series to series)), except (1)
a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security or (2) a continued Default in respect of a provision that under Section
9.02 cannot be amended or supplemented without the consent of each Holder
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 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 6.01, and with respect to all Securities,
the Holders of a majority in principal amount of all the then outstanding
Securities affected may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it not relating to or arising under such an
Event of Default. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of other
32
Holders, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion from Holders directing the Trustee against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of
Section 6.01 hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company or a Guarantor for the amount of principal, premium (if any), interest
and any Additional Amounts remaining unpaid on the Securities of the series
affected by the Event of Default, and interest on overdue principal and premium,
if any, and, to the extent lawful, interest on overdue interest, and such
further amount as shall be sufficient to
33
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary
or advisable to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company or a Guarantor or their respective creditors or
properties and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any Bankruptcy Custodian 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 to 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 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Securities may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 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 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 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money
has been collected, for principal, premium (if any), interest and any
Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any), interest and any Additional Amounts,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
record dates and payment dates for any payment to Holders pursuant to this
Article VI.
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To the fullest extent allowed under applicable law, if for the
purpose of obtaining a judgment against the Company or a Guarantor in any court
it is necessary to convert the sum due in respect of the principal of, premium
(if any) or interest on or Additional Amounts with respect to the Securities of
any series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York next preceding that on which final judgment
is given. Neither the Company, any Guarantor nor the Trustee shall be liable for
any shortfall nor shall it benefit from any windfall in payments to Holders of
Securities under this Section 6.10 caused by a change in exchange rates between
the time the amount of a judgment against it is calculated as above and the time
the Trustee converts the Judgment Currency into the Required Currency to make
payments under this Section 6.10 to Holders of Securities, but payment of such
judgment shall discharge all amounts owed by the Company and the Guarantors on
the claim or claims underlying such judgment.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, 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. However, the Trustee shall examine such certificates
and opinions to
35
determine whether, on their face, they appear to conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company and
the Guarantors. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law. All money received by the
Trustee shall, until applied as herein provided, be held in trust for the
payment of the principal of, premium (if any) and interest on and Additional
Amounts with respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers' Certificate or an Opinion of Counsel or both
to be provided. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such instruction, Officers' Certificate or
Opinion of Counsel. The Trustee may consult at the Company's expense with
counsel of its selection and the 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.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Guarantor shall
be sufficient if signed by an Officer of the Company or such Guarantor, as the
case may be.
(f) The Trustee shall not be obligated 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, other evidence of indebtedness or other paper or
document.
(g) 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 each agent, custodian and other Person employed
to act hereunder.
(h) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, any
Guarantor or any of their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights and
duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or any Guarantor or upon the Company's or such Guarantor's direction
under any provision hereof, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
it shall not be responsible for any statement or recital herein or any statement
in the Securities other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such series a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if
any) and interest on and Additional Amounts or any sinking fund installment with
respect to the Securities
37
of such series, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders of Securities of such series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each September 15 of each year after the
execution of this Indenture, the Trustee shall mail to Holders of a series, the
Guarantors and the Company a brief report dated as of such reporting date that
complies with TIA Section 313(a); provided, however, that if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date with respect to a series, no report need be transmitted to
Holders of such series. The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports if and as required by TIA
Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of
a series of Securities shall be filed by the Company or a Guarantor with the SEC
and each securities exchange, if any, on which the Securities of such series are
listed. The Company shall notify the Trustee if and when any series of
Securities is listed on any securities exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of
this Indenture and services hereunder such compensation as the Company and the
Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company agrees to reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company hereby indemnifies the Trustee and any predecessor
Trustee against any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based upon, measured by or determined by the income of
the Trustee), incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company and the
Guarantors promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through the
Trustee's negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of any series. Such lien and the Company's obligations
under this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company and
the Guarantors. The Holders of a majority in principal amount of the then
outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee, the Company and the
Guarantors. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Company 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). Within one
year after the successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of the Securities of
such series then outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 30 days after the retiring or removed Trustee
resigns or is removed, the retiring or removed Trustee (at the expense of the
Company), the Company, any Guarantor or the Holders of at least 10% in principal
amount of the then outstanding Securities of such series may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
39
In case of the appointment of a successor Trustee with respect
to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee, to the Company and to the
Guarantors. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the retiring Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Guarantors, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more (but not all) series shall execute and deliver an
indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights,
powers 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, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
confirm that all the rights, powers 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
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee. Nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, and 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. Upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee shall have all the rights, powers 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. On request of
the Company or any successor Trustee, such retiring Trustee shall transfer to
such successor Trustee all property held by such retiring Trustee as Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. Such retiring Trustee shall, however, have
the right to deduct its unpaid fees and expenses, including attorneys' fees.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section 7.07
shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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
40
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation or banking association organized and doing business under the laws
of the United States, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust power, shall be subject
to supervision or examination by Federal or State (or the District of Columbia)
authority and shall have, or be a subsidiary of a bank or bank holding company
having, a combined capital and surplus of at least $50 million as set forth in
its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against the Company or a
Guarantor.
The Trustee is subject to and shall comply with the provisions
of TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of the Company's and the Guarantors' Obligations.
(a) This Indenture shall cease to be of further effect with
respect to the Securities of a series (except that the Company's obligations
under Section 7.07, the Trustee's and Paying Agent's obligations under Section
8.03 and the rights, powers, protections and privileges accorded the Trustee
under Article VII shall survive), and the Trustee and the Guarantors, on demand
of the Company, shall execute proper instruments acknowledging the satisfaction
and discharge of this Indenture with respect to the Securities of such series,
when:
(1) either:
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
41
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one
year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and, in the case of clause (i), (ii) or (iii) above, the
Company or a Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as funds (immediately available
to the Holders in the case of clause (i)) in trust for such
purpose (x) cash in an amount, or (y) Government Obligations,
maturing as to principal and interest at such times and in
such amounts as will ensure the availability of cash in an
amount or (z) a combination thereof, which will be sufficient,
in the opinion (in the case of clauses (y) and (z)) of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the entire indebtedness on the
Securities of such series for principal and interest to the
date of such deposit (in the case of Securities which have
become due and payable) or for principal, premium, if any, and
interest to the Stated Maturity or Redemption Date, as the
case may be; or
(C) the Company and the Guarantors have properly
fulfilled such other means of satisfaction and discharge as is
specified, as contemplated by Section 2.01, to be applicable
to the Securities of such series;
(2) the Company or a Guarantor has paid or caused to be paid
all other sums payable by them hereunder with respect to the Securities
of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of a series as contemplated by Section 2.01, the
Company may, at its option, terminate certain of its and the Guarantors'
respective obligations under this Indenture ("covenant defeasance") with respect
to the Securities of a series if:
(1) the Company or a Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the
Holders of Securities of such series, (i) money in the currency in
which
42
payment of the Securities of such series is to be made in an amount, or
(ii) Government Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts as will ensure
the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a
combination thereof, that is sufficient, in the opinion (in the case of
clauses (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and premium (if any)
and interest on all Securities of such series on each date that such
principal, premium (if any) or interest is due and payable and (at the
Stated Maturity thereof or upon redemption as provided in Section
8.01(e)) to pay all other sums payable by it hereunder; provided that
the Trustee shall have been irrevocably instructed to apply such money
and/or the proceeds of such Government Obligations to the payment of
said principal, premium (if any) and interest with respect to the
Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from a nationally recognized counsel acceptable to the
Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for U.S. Federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.01(b) 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 option had not been exercised;
(5) the Company and the Guarantors have complied with any
additional conditions specified pursuant to Section 2.01 to be
applicable to the discharge of Securities of such series pursuant to
this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b).
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee and the
Guarantors, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the
Company's and the Guarantors' respective obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.04 and 10.01, the Trustee's and
Paying Agent's obligations in Section 8.03 and the rights, powers, protections
and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
43
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's and the
Guarantors' obligations under this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay
principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuer's option.
(c) If the Company and the Guarantors have previously complied
or are concurrently complying with Section 8.01(b) (other than any additional
conditions specified pursuant to Section 2.01 that are expressly applicable only
to covenant defeasance) with respect to Securities of a series, then, unless
this Section 8.01(c) is specified as not being applicable to Securities of such
series as contemplated by Section 2.01, the Company may elect that its and the
Guarantors' respective obligations to make payments with respect to Securities
of such series be discharged ("legal defeasance"), if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated by
Section 8.01(b) (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section
8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed
to the Company, (ii) a published ruling of the Internal Revenue Service
pertaining to a comparable form of transaction or (iii) a change in the
applicable federal income tax law (including regulations) after the
date of this Indenture;
(3) the Company and the Guarantors have complied with any
other conditions specified pursuant to Section 2.01 to be applicable to
the legal defeasance of Securities of such series pursuant to this
Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting such legal defeasance of the Securities of such series and
an Officers' Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such series have
been complied with, together with an Opinion of Counsel to the same
effect.
In such event, the Company and the Guarantors will be
discharged from their respective obligations under this Indenture and the
Securities of such series to pay principal of, premium (if any) and interest on,
and any Additional Amounts with respect to, Securities of such series, the
Company's and the Guarantors' respective obligations under Sections 4.01, 4.02
and
44
10.01 shall terminate with respect to such Securities, and the entire
indebtedness of the Company evidenced by such Securities and of the Guarantors
evidenced by the related Guarantees shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, each of the
Company and the Guarantors may terminate any or all of its obligations under
this Indenture with respect to Securities of a series and any or all of its
obligations under the Securities of such series if it fulfills such other means
of satisfaction and discharge as may be so specified, as contemplated by Section
2.01, to be applicable to the Securities of such series.
(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the
Company shall make such arrangements as are reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the
money from Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made.
SECTION 8.03 Repayment to Company or Guarantor.
The Trustee and the Paying Agent shall promptly pay to the
Company or any Guarantor any excess money or Government Obligations (or proceeds
therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remain unclaimed for two years
after the date upon which such payment shall have become due. After payment to
the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or
45
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company and the Guarantors under this
Indenture with respect to the Securities of such series and under the Securities
of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 8.01; provided, however, that if the Company or any Guarantor has made
any payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company or such Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Obligations held by the Trustee or the
Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Securities or waive any provision hereof or
thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or to provide for the issuance of
bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of
or additional obligors on, any series of Securities or the related
Guarantees;
(5) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to add to the covenants of the Company or any Guarantor
for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included
solely for the benefit of such series), or to surrender any right or
power herein conferred upon the Company or any Guarantor;
(7) to add any additional Events of Default with respect to
all or any series of the Securities (and, if any Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such amendment or
46
supplemental indenture that is adversely affected in any material
respect by such change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series
as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 8.01; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company
and the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained.
SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture with the
written consent (including consents obtained in connection with a tender offer
or exchange offer for Securities of any one or more series or all series or a
solicitation of consents in respect of Securities of any one or more series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of each such series (but the terms of
such offer or solicitation may vary from series to series)) of the Holders of at
least a majority in principal amount of the then outstanding Securities of all
series affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of the consent of
the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company and the Guarantors in the execution of such amendment or
supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the then
outstanding Securities of one or more series or of all series may waive
compliance in a particular instance by the
47
Company or any Guarantor with any provision of this Indenture with respect to
Securities of such series (including waivers obtained in connection with a
tender offer or exchange offer for Securities of such series or a solicitation
of consents in respect of Securities of such series, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities
of such series (but the terms of such offer or solicitation may vary from series
to series)).
However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory
sinking fund payment with respect to, or change the Stated Maturity of,
any Security or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of
any Security or change the time at which any Security may or shall be
redeemed;
(5) change any obligation of the Company or any Guarantor to
pay Additional Amounts with respect to any Security;
(6) change the coin or currency or currencies (including
composite currencies) in which any Security or any premium, interest or
Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of
any payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security pursuant to Sections
6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or make any change in
this sentence of Section 9.02; or
(9) waive a continuing Default or Event of Default in the
payment of principal of, premium (if any) or interest on or Additional
Amounts with respect to the Securities.
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 which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
48
The right of any Holder to participate in any consent required
or sought pursuant to any provision of this Indenture (and the obligation of the
Company or any Guarantor to obtain any such consent otherwise required from such
Holder) may be subject to the requirement that such Holder shall have been the
Holder of record of any Securities with respect to which such consent is
required or sought as of a date identified by the Company or such Guarantor in a
notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before a date and time therefor identified
by the Company or any Guarantor in a notice furnished to such Holder in
accordance with the terms of this Indenture or, if no such date and time shall
be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
The Company or any Guarantor may, but shall not be obligated
to, fix a record date (which need not comply with TIA Section 316(c)) for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver or to take any other action under this Indenture. If a
record date is fixed, then notwithstanding the provisions of the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No consent shall be valid or effective for more than 90 days after
such record date unless consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses
(1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement
or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
49
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security at the request of the Company regarding the changed terms and return it
to the Holder. Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue, the Guarantors shall execute and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the
execution of any amendment or supplement 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 or supplement.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel provided at the expense of the Company or
a Guarantor as conclusive evidence that such amendment or supplement is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company and the Guarantors in
accordance with its terms.
ARTICLE X
GUARANTEE
SECTION 10.01 Guarantee.
Each Guarantor, jointly and severally, hereby unconditionally
guarantees to the Holders from time to time of the Securities (a) the full and
prompt payment of the principal of and any premium on any Security when and as
the same shall become due, whether at the Stated Maturity thereof, by
acceleration, redemption or otherwise, and (b) the full and prompt payment of
any interest on and any Additional Amounts with respect to any Security when and
as the same shall become due, subject in each case to any applicable grace
period. Each payment by a Guarantor with respect to any Security shall be paid
in the currency or currencies specified for payments on such Security as
contemplated by Section 2.01 and pursuant to this Indenture. The Guarantee
hereunder constitutes a guarantee of payment and not of collection.
The obligations of each Guarantor hereunder with respect to a
series of Securities shall be absolute and unconditional and, subject to Article
VIII, shall remain in full force and effect until the entire principal of,
premium (if any) and interest on and any Additional Amounts with respect to the
Securities of such series shall have been paid or provided for in accordance
with the provisions of such series and of this Indenture, irrespective of the
validity, regularity or enforceability of any Security of such series or this
Indenture, any change or amendment thereto,
50
the absence of any action to enforce the same, any waiver or consent by the
Trustee or the Holder of any Security of such series with respect to any
provision of such Security or this Indenture, the recovery of any judgment
against the Company or any other Guarantor or any action to enforce the same, or
any other circumstances that may otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives presentment or
demand of payment or notice to such Guarantor with respect to such Security and
the obligations evidenced thereby or hereby. Each Guarantor further waives any
right of set-off or counterclaim it may have against any Holder of a Security
arising from any other obligations any such Holder may have to the Company or
any Guarantor.
It is the intention of the Guarantors that the Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to the extent applicable to the Guarantee.
To effectuate the foregoing intention, the obligations of each Guarantor
hereunder shall be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
Guarantor (other than guarantees of such Guarantor in respect of subordinated
debt) that are relevant under such laws, result in the obligations of such
Guarantor hereunder not constituting a fraudulent transfer or conveyance.
SECTION 10.02 Proceedings Against Guarantor.
In the event of a default in the payment of principal of or
any premium on any Security when and as the same shall become due, whether at
the Stated Maturity thereof, by acceleration, call for redemption or otherwise,
or in the event of a default in any sinking fund payment, or in the event of a
default in the payment of any interest on or any Additional Amounts with respect
to any Security when and as the same shall become due, each of the Trustee and
the Holder of such Security shall have the right to proceed first and directly
against a Guarantor under this Indenture without first proceeding against the
Company or exhausting any other remedies which the Trustee or such Holder may
have and without resorting to any other security held by it.
The Trustee shall have the right, power and authority to do
all things it deems necessary or advisable to enforce the provisions of this
Indenture relating to the Guarantee and to protect the interests of the Holders
of the Securities and, in the event of a default in payment of the principal of
or any premium on any Security when and as the same shall become due, whether at
the Stated Maturity thereof, by acceleration, call for redemption or otherwise,
or in the event of a default in the payment of any interest on or any Additional
Amounts with respect to any Security when and as the same shall become due, the
Trustee may institute or appear in such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of its rights and
the rights of the Holders, whether for the specific enforcement of any covenant
or agreement in this Indenture relating to the Guarantee or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Without limiting the generality of the foregoing, in the event of a default in
payment of the principal of, premium (if any) and interest on or any Additional
Amounts with respect to any Security when due, the Trustee may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against a
51
Guarantor and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of such Guarantor, wherever situated.
SECTION 10.03 Subrogation.
Each Guarantor shall be subrogated to all rights against the
Company or any other Guarantor of any Holder of Securities of a series in
respect of any amounts paid by such Guarantor pursuant to the provisions of the
Guarantee; provided, however, that such Guarantor shall be entitled to enforce,
or to receive any payments arising out of or based upon, such right of
subrogation only after the principal of, premium (if any) and interest on and
any Additional Amounts with respect to all Securities of such series have been
paid in full.
SECTION 10.04 Guarantee for Benefit of Holders.
The Guarantee contained in this Indenture is entered into by
each Guarantor for the benefit of the Holders from time to time of the
Securities. Such provisions shall not be deemed to create any right in, or to be
in whole or in part for the benefit of, any Person other than the Trustee, the
Guarantors, the Holders from time to time of the Securities and their permitted
successors and assigns.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
SECTION 11.02 Notices.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested),
telex, facsimile or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attn: General Counsel
Telephone: (281) 293-1000
Facsimile: (281) 293-1600
52
If to Conoco:
Conoco Inc.
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attn: General Counsel
Telephone: (281) 293-1000
Facsimile: (281) 293-1600
If to Phillips:
Phillips Petroleum Company
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attn: General Counsel
Telephone: (281) 293-1000
Facsimile: (281) 293-1600
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attn: Corporate Trust Administration
Telephone: (212) 815-5498
Facsimile: (212) 815-5707
The Company, any Guarantor or the Trustee by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, postage prepaid, to the Holder's address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only
when received.
53
If the Company or a Guarantor mails a notice or communication
to Holders, it shall mail a copy to the others and to the Trustee and each Agent
at the same time.
All notices or communications, including without limitation
notices to the Trustee, the Company or a Guarantor by Holders, shall be in
writing, except as otherwise set forth herein.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or a Guarantor
to the Trustee to take any action under this Indenture, the Company or such
Guarantor, as the case may be, shall, if requested by the Trustee, furnish to
the Trustee at the expense of the Company or such Guarantor, as the case may be:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
54
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or the Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other
owner of the Company, a Guarantor or the Trustee, as such, shall not have any
liability for any obligations of the Company under the Securities, for any
obligations of any Guarantor under the Guarantee, or for any obligations of the
Company, any Guarantor or the Trustee under this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability. The
waiver and release shall be part of the consideration for the issue of
Securities.
SECTION 11.09 Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company, any Guarantor or any Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
55
SECTION 11.12 Severability.
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, to the fullest extent
permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 11.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
56
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CONOCOPHILLIPS
By: /s/ Jeff W. Sheets
----------------------------------------
Jeff W. Sheets
Vice President and Treasurer
CONOCO INC.
By: /s/ Sigmund L. Cornelius
----------------------------------------
Sigmund L. Cornelius
Vice President and Treasurer
PHILLIPS PETROLEUM COMPANY
By: /s/ Jeff W. Sheets
----------------------------------------
Jeff W. Sheets
Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van K. Brown
----------------------------------------
Name: Van K. Brown
Title: Vice President
EXHIBIT 4.6
================================================================================
CONOCOPHILLIPS
as Issuer
and
THE BANK OF NEW YORK
as Trustee
---------------------------------
Indenture
Dated as of ________ ___, ____
---------------------------------
Subordinated Debt Securities
================================================================================
CONOCOPHILLIPS
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ________ ___, ____
--------------------
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ----------- ---------
Section 310 (a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08, 7.10
Section 311 (a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... Not Applicable
Section 312 (a).......................................................................... 2.07
(b).......................................................................... 11.03
(c).......................................................................... 11.03
Section 313 (a).......................................................................... 7.06
(b).......................................................................... 7.06
(c).......................................................................... 7.06
(d).......................................................................... 7.06
Section 314 (a).......................................................................... 4.03, 4.04
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 11.04
(c)(2)....................................................................... 11.04
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 11.05
Section 315 (a).......................................................................... 7.01(b)
(b).......................................................................... 7.05
(c).......................................................................... 7.01(a)
(d).......................................................................... 7.01(c)
(d)(1)....................................................................... 7.01(c)(1)
(d)(2)....................................................................... 7.01(c)(2)
(d)(3)....................................................................... 7.01(c)(3)
(e).......................................................................... 6.11
Section 316 (a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... Not Applicable
(a)(last sentence)........................................................... 2.11
(b).......................................................................... 6.07
Section 317 (a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.06
Section 318 (a).......................................................................... 11.01
- ------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..................................................1
SECTION 1.01 Definitions............................................................................1
SECTION 1.02 Other Definitions......................................................................6
SECTION 1.03 Incorporation by Reference of Trust Indenture Act......................................6
SECTION 1.04 Rules of Construction..................................................................7
ARTICLE II THE SECURITIES..............................................................................7
SECTION 2.01 Amount Unlimited; Issuable in Series...................................................7
SECTION 2.02 Denominations.........................................................................10
SECTION 2.03 Forms Generally.......................................................................10
SECTION 2.04 Execution, Authentication, Delivery and Dating........................................11
SECTION 2.05 Registrar and Paying Agent............................................................12
SECTION 2.06 Paying Agent to Hold Money in Trust...................................................13
SECTION 2.07 Holder Lists..........................................................................13
SECTION 2.08 Transfer and Exchange.................................................................13
SECTION 2.09 Replacement Securities................................................................14
SECTION 2.10 Outstanding Securities................................................................14
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.........15
SECTION 2.12 Temporary Securities..................................................................15
SECTION 2.13 Cancellation..........................................................................15
SECTION 2.14 Payments; Defaulted Interest..........................................................16
SECTION 2.15 Persons Deemed Owners.................................................................16
SECTION 2.16 Computation of Interest...............................................................16
SECTION 2.17 Global Securities; Book-Entry Provisions..............................................17
ARTICLE III REDEMPTION.................................................................................19
SECTION 3.01 Applicability of Article..............................................................19
SECTION 3.02 Notice to the Trustee.................................................................19
SECTION 3.03 Selection of Securities To Be Redeemed................................................19
SECTION 3.04 Notice of Redemption..................................................................20
SECTION 3.05 Effect of Notice of Redemption........................................................20
SECTION 3.06 Deposit of Redemption Price...........................................................21
SECTION 3.07 Securities Redeemed or Purchased in Part..............................................21
SECTION 3.08 Purchase of Securities................................................................21
SECTION 3.09 Mandatory and Optional Sinking Funds..................................................21
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.................................22
SECTION 3.11 Redemption of Securities for Sinking Fund.............................................22
i
ARTICLE IV COVENANTS..................................................................................23
SECTION 4.01 Payment of Securities.................................................................23
SECTION 4.02 Maintenance of Office or Agency.......................................................23
SECTION 4.03 SEC Reports; Financial Statements.....................................................24
SECTION 4.04 Compliance Certificate................................................................24
SECTION 4.05 Corporate Existence...................................................................24
SECTION 4.06 Waiver of Stay, Extension or Usury Laws...............................................25
SECTION 4.07 Additional Amounts....................................................................25
ARTICLE V SUCCESSORS.................................................................................25
SECTION 5.01 Limitations on Mergers and Consolidations.............................................25
SECTION 5.02 Successor Person Substituted..........................................................26
ARTICLE VI DEFAULTS AND REMEDIES......................................................................26
SECTION 6.01 Events of Default.....................................................................26
SECTION 6.02 Acceleration..........................................................................28
SECTION 6.03 Other Remedies........................................................................29
SECTION 6.04 Waiver of Defaults....................................................................29
SECTION 6.05 Control by Majority...................................................................29
SECTION 6.06 Limitations on Suits..................................................................30
SECTION 6.07 Rights of Holders to Receive Payment..................................................30
SECTION 6.08 Collection Suit by Trustee............................................................30
SECTION 6.09 Trustee May File Proofs of Claim......................................................30
SECTION 6.10 Priorities............................................................................31
SECTION 6.11 Undertaking for Costs.................................................................32
ARTICLE VII TRUSTEE....................................................................................32
SECTION 7.01 Duties of Trustee.....................................................................32
SECTION 7.02 Rights of Trustee.....................................................................33
SECTION 7.03 May Hold Securities...................................................................34
SECTION 7.04 Trustee's Disclaimer..................................................................34
SECTION 7.05 Notice of Defaults....................................................................34
SECTION 7.06 Reports by Trustee to Holders.........................................................34
SECTION 7.07 Compensation and Indemnity............................................................35
SECTION 7.08 Replacement of Trustee................................................................35
SECTION 7.09 Successor Trustee by Merger, etc......................................................37
SECTION 7.10 Eligibility; Disqualification.........................................................38
SECTION 7.11 Preferential Collection of Claims Against the Company.................................38
ARTICLE VIII DISCHARGE OF INDENTURE.....................................................................38
SECTION 8.01 Termination of the Company's Obligations..............................................38
SECTION 8.02 Application of Trust Money............................................................42
SECTION 8.03 Repayment to Company..................................................................42
SECTION 8.04 Reinstatement.........................................................................42
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS.....................................................43
SECTION 9.01 Without Consent of Holders............................................................43
ii
SECTION 9.02 With Consent of Holders...............................................................44
SECTION 9.03 Compliance with Trust Indenture Act...................................................46
SECTION 9.04 Revocation and Effect of Consents.....................................................46
SECTION 9.05 Notation on or Exchange of Securities.................................................46
SECTION 9.06 Trustee to Sign Amendments, etc.......................................................47
ARTICLE X SUBORDINATION OF SECURITIES................................................................47
SECTION 10.01 Securities Subordinated to Senior Debt................................................47
SECTION 10.02 No Payment on Securities in Certain Circumstances.....................................47
SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Debt on Dissolution,
Liquidation or Reorganization.........................................................48
SECTION 10.04 Subrogation to Rights of Holders of Senior Debt.......................................49
SECTION 10.05 Obligations of the Company Unconditional..............................................50
SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice...............50
SECTION 10.07 Application by Trustee of Amounts Deposited with It...................................50
SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of
Senior Debt...........................................................................51
SECTION 10.09 Trustee to Effectuate Subordination of Securities.....................................51
SECTION 10.10 Right of Trustee to Hold Senior Debt..................................................52
SECTION 10.11 Article X Not to Prevent Events of Default............................................52
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Debt................................52
SECTION 10.13 Article Applicable to Paying Agent....................................................52
ARTICLE XI MISCELLANEOUS..............................................................................52
SECTION 11.01 Trust Indenture Act Controls..........................................................52
SECTION 11.02 Notices...............................................................................53
SECTION 11.03 Communication by Holders with Other Holders...........................................54
SECTION 11.04 Certificate and Opinion as to Conditions Precedent....................................54
SECTION 11.05 Statements Required in Certificate or Opinion.........................................54
SECTION 11.06 Rules by Trustee and Agents...........................................................55
SECTION 11.07 Legal Holidays........................................................................55
SECTION 11.08 No Recourse Against Others............................................................55
SECTION 11.09 Governing Law.........................................................................55
SECTION 11.10 No Adverse Interpretation of Other Agreements.........................................55
SECTION 11.11 Successors............................................................................55
SECTION 11.12 Severability..........................................................................55
SECTION 11.13 Counterpart Originals.................................................................56
SECTION 11.14 Table of Contents, Headings, etc......................................................56
iii
INDENTURE dated as of ________ ___, ____ between
ConocoPhillips, a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
unsecured subordinated debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"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 purposes of this definition,
"control" of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized, with respect to any particular
matter, to act by or on behalf of the Board of Directors of the Company.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Capitalized Lease Obligation" of any Person means any
obligation of such Person to pay rent or other amounts under a lease of
property, real or personal, that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such obligation
shall be the capitalized amount thereof determined in accordance with GAAP.
1
"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; provided, however, that for purposes
of any provision contained herein which is required by the TIA, "Company" shall
also mean each other obligor (if any) on the Securities of a series.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" means the office of
the Trustee located at 101 Barclay Street, Floor 8W, New York, New York 10286,
Attention: Corporate Trust Administration, and as may be located at such other
address as the Trustee may give notice to the Company.
"Debt" of any Person means, without duplication: (i) all
indebtedness or obligations of such Person for borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such Person or only
to a portion thereof); (ii) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments; (iii) all obligations of such
Person in respect of letters of credit or other similar instruments (or
reimbursement obligations with respect thereto), other than standby letters of
credit, bid or performance bonds and other obligations issued by or for the
account of such Person in the ordinary course of business, to the extent not
drawn or, to the extent drawn, if such drawing is reimbursed not later than the
third Business Day following demand for reimbursement; (iv) all obligations of
such Person to pay the deferred and unpaid purchase price of property or
services, except trade payables and accrued expenses incurred in the ordinary
course of business; (v) all Capitalized Lease Obligations of such Person; (vi)
all Debt of others secured by a lien on any asset of such Person, whether or not
such Debt is assumed by such Person (provided that if the obligations so secured
have not been assumed in full by such Person or are not otherwise such Person's
legal liability in full, then such obligations shall be deemed to be in an
amount equal to the greater of (a) the lesser of (1) the full amount of such
obligations and (2) the fair market value of such assets, as determined in good
faith by the Board of Directors of such Person, which determination shall be
evidenced by a Board Resolution, and (b) the amount of obligations as have been
assumed by such Person or which are otherwise such Person's legal liability);
and (vii) all Debt of others (other than endorsements in the ordinary course of
business) guaranteed by such Person to the extent of such guarantee.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with respect
to the Securities of such series, until a successor shall have been appointed
and become such pursuant to the applicable provision of this Indenture, and
thereafter "Depositary" shall mean or include such successor.
2
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Security" means a Security that is issued in global
form in the name of the Depositary with respect thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct obligations of the government that issues the currency in
which the Securities of the series are payable for the payment of which the full
faith and credit of such government is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the provisions hereof, and includes the terms of a
particular series of Securities established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, shall have the meaning assigned to such term in the Security as
contemplated by Section 2.01.
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York; Houston, Texas or
a Place of Payment are authorized or obligated by law, regulation or executive
order to remain closed.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
3
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of that
series are payable as specified in accordance with Section 2.01 subject to the
provisions of Section 4.02.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Responsible Officer" means any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Rule 144A Securities" means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
4
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, as
custodian with respect to the Securities of such series, or any successor entity
thereto.
"Senior Debt" of the Company, unless otherwise provided with
respect to the Securities of a series as contemplated by Section 2.01, means (i)
all Debt of the Company, whether currently outstanding or hereafter created,
incurred or assumed, unless, by the terms of the instrument creating or
evidencing such Debt or pursuant to which such Debt is outstanding, it is
provided that such Debt is not superior in right of payment to the Securities or
to other Debt which is pari passu with or subordinated to the Securities, and
(ii) any modifications, refunding, deferrals, renewals or extensions of any such
Debt or any securities, notes or other evidences of Debt issued in exchange for
such Debt; provided that, unless otherwise provided with respect to the
Securities of a series as contemplated by Section 2.01, in no event shall
"Senior Debt" include (a) Debt of the Company owed or owing to any Subsidiary or
any officer, director or employee of the Company or any Subsidiary, (b) Debt to
trade creditors or (c) any liability for taxes owed or owing by the Company.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a Person at least a majority 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. For the purposes of this definition, "voting stock" means
stock having voting power for the election 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.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date hereof.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series means the Trustee with respect
to Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories and possessions,
which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
5
SECTION 1.02 Other Definitions.
DEFINED
TERM IN SECTION
- ---- ----------
"Bankruptcy Custodian"....................................................................... 6.01
"Conversion Event"........................................................................... 6.01
"covenant defeasance"........................................................................ 8.01
"Event of Default"........................................................................... 6.01
"Exchange Rate".............................................................................. 2.11
"Judgment Currency".......................................................................... 6.10
"legal defeasance"........................................................................... 8.01
"mandatory sinking fund payment"............................................................. 3.09
"optional sinking fund payment".............................................................. 3.09
"Paying Agent"............................................................................... 2.05
"Payment Default"............................................................................ 10.02
"Registrar".................................................................................. 2.05
"Required Currency".......................................................................... 6.10
"Successor".................................................................................. 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture (and
if the Indenture is not qualified under the TIA at that time, as if it were so
qualified unless otherwise provided). The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"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 indenture securities means the Company or any
other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
6
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this instrument to Articles and
Sections are references to the corresponding Articles
and Sections in and of this instrument.
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There
shall be established in or pursuant to a Board Resolution, and set forth, or
determined in the manner provided, in an Officers' Certificate of the Company or
in a Company Order, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) if there is to be a limit, the 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 2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 and except for any
Securities which, pursuant to Section 2.04 or 2.17, are deemed never to
have been authenticated and delivered hereunder); provided, however,
that unless otherwise provided in the terms of the series, the
authorized aggregate principal amount of such series may be increased
before or after the issuance of any Securities of the series by a Board
Resolution (or action pursuant to a Board Resolution) to such effect;
7
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, whether beneficial owners of
interests in any such Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) the manner in which any interest payable on a temporary
Global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium
(if any) on the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date, or if other than
provided herein, the Person to whom any interest on Securities of the
series shall be payable;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) if other than Dollars, the currency or currencies
(including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company or any other
8
Person, in which payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities
of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or
any Additional Amounts with respect to the Securities of the series are
to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies (including composite currencies) other than that
in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such
election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(13) if the amount of payments of principal of, premium (if
any) and interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(15) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article
VIII or any modifications of or deletions from such conditions or
limitations;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
set forth in Article IV pertaining to the Securities of the series;
(17) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible
into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities or any other
securities or property of the Company or any other Person, at the
option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or
exchange;
(19) whether the Securities of the series are to be entitled
to the benefit of Section 4.03(b) (and accordingly constitute Rule 144A
Securities);
(20) any modifications to the definition of "Senior Debt," to
Article X or to the other provisions regarding subordination with
respect to the Securities of the series; and
9
(21) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
2.03) set forth, or determined in the manner provided, in the Officers'
Certificate or Company Order referred to above or in any such indenture
supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action, together with such Board Resolution, shall be set forth in an Officers'
Certificate or certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the
Officers' Certificate or Company Order setting forth the terms of the series.
The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article X and/or as specified as contemplated
pursuant to this Section 2.01.
SECTION 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto. The Securities may have notations, legends or
endorsements required by law, securities exchange rule, the Company's
certificate of incorporation, bylaws or other similar governing documents,
agreements to which the Company is subject, if any, or usage (provided that any
such notation, legend or endorsement is in a form acceptable to the Company). A
copy of the Board Resolution establishing the form or forms of Securities of any
series shall be delivered to the Trustee at or prior to the delivery of the
Company Order contemplated by Section 2.04 for the authentication and delivery
of such Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers executing such Securities, as
evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
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"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: ___________________________________
Authorized Signatory".
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on
behalf of the Company by manual or facsimile signature. If an Officer of the
Company whose signature is on a Security no longer holds that office at the time
the Security is authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture. Notwithstanding the foregoing, if any Security has been authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company delivers such Security to the Trustee for cancellation as provided in
Section 2.13, together with a written statement (which need not comply with
Section 11.05 and need not be accompanied by an Opinion of Counsel) stating that
such Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
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, and the Trustee shall
authenticate and deliver such Securities for original issue upon a Company Order
for the authentication and delivery of such Securities or pursuant to such
procedures acceptable to the Trustee as may be specified from time to time by
Company Order. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated, the name or names of the initial Holder or Holders and any other
terms of the Securities of such series not otherwise determined. If provided for
in such procedures, such Company Order may authorize (1) authentication and
delivery of Securities of such series for original issue from time to time, with
certain terms (including, without limitation, the Maturity dates or dates,
original issue date or dates and interest rate or rates) that differ from
Security to Security and (2) may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Section 2.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred
to
11
above and the other documents required by Section 11.04), and (subject to
Section 7.01) shall be fully protected in relying upon:
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of
Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and binding obligations of
the Company, enforceable against the Company in accordance
with their terms, except as the enforceability thereof may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws in
effect from time to time affecting the rights of creditors
generally, and the application of general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate and
Opinion of Counsel at the time of issuance of each such Security, but such
Officers' Certificate and Opinion of Counsel shall be delivered at or before the
time of issuance of the first Security of the series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where Securities
of such series may be presented for
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payment ("Paying Agent"). The Registrar shall keep a register of the Securities
of such series and of their transfer and exchange. The Company may appoint one
or more co-registrars and one or more additional paying agents. The term
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company or a Subsidiary)
shall have no further liability for the money. If the Company or a Subsidiary
acts as Paying Agent, it shall segregate and hold in a separate trust fund for
the benefit of the Holders all money held by it as Paying Agent. Each Paying
Agent shall otherwise comply with TIA Section 317(b).
SECTION 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date with respect to such series of Securities, and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of Holders of
such series, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01:
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When Securities of any series are presented to the Registrar
with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of
like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met; provided, however,
that the Securities presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form reasonably satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing, on which
instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's written request and submission of the Securities or Global
Securities. No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), 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 such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in
accordance with the provisions of Section 2.04. Notwithstanding any other
provisions of this Indenture to the contrary, the Company shall not be required
to register the transfer or exchange of (a) any Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion of
any Security being redeemed in part, or (b) any Security during the period
beginning 15 Business Days prior to the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the terms thereof or of
redemption of Securities of a series to be redeemed and ending at the close of
business on the day of mailing.
SECTION 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if
the Holder of a Security claims that the Security has been destroyed, lost or
stolen and the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of such Security, the Company shall issue and the
Trustee shall authenticate a replacement Security of the same series if the
Trustee's requirements are met. If 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. If
required by the Trustee or the Company, such Holder must furnish an indemnity
bond that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent or any authenticating agent from any
loss that any of them may suffer if a Security is replaced. The Company and the
Trustee may charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in
14
the interest in a Global Security effected by the Trustee hereunder and those
described in this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury
Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02, (b) the principal amount of a Security denominated in
a foreign currency shall be the Dollar equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is certified for customs purposes by the Federal
Reserve Bank of New York (the "Exchange Rate") on the date of original issuance
of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent, as determined by the Company by
reference to the Exchange Rate on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded,
except that, for the purpose of determining whether the Trustee shall be
protected in relying upon any such direction, amendment, supplement, waiver or
consent, only Securities that a Responsible Officer of the Trustee actually
knows are so owned shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to
15
them for registration of transfer, exchange, payment or redemption or for credit
against any sinking fund payment. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, redemption,
replacement or cancellation or for credit against any sinking fund. Unless the
Company shall direct in writing that canceled Securities be returned to it,
after written notice to the Company all canceled Securities held by the Trustee
shall be disposed of in accordance with the usual disposal procedures of the
Trustee, and the Trustee shall maintain a record of their disposal. The Company
may not issue new Securities to replace Securities that have been paid or that
have been delivered to the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01,
interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Persons who are registered Holders of that Security at the close of
business on the record date next preceding such Interest Payment Date, even if
such Securities are canceled after such record date and on or before such
Interest Payment Date. The Holder must surrender a Security to a Paying Agent to
collect principal payments. Unless otherwise provided with respect to the
Securities of any series, the Company will pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
in Dollars. Such amounts shall be payable at the offices of the Trustee or any
Paying Agent, provided that at the option of the Company, the Company may pay
such amounts (1) by wire transfer with respect to Global Securities or (2) by
check payable in such money mailed to a Holder's registered address with respect
to any Securities.
If the Company defaults in a payment of interest on the
Securities of any series, the Company shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest on the defaulted interest, in
each case at the rate provided in the Securities of such series and in Section
4.01. The Company may pay the defaulted interest to the Persons who are Holders
on a subsequent special record date. At least 15 days before any special record
date selected by the Company, the Company (or the Trustee, in the name of and at
the expense of the Company upon 20 days' prior written notice from the Company
setting forth such special record date and the interest amount to be paid) shall
mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating
agent may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payments of principal of, premium
(if any) or interest on or any Additional Amounts with respect to such Security
and for all other purposes. None of the Company, the Trustee, any Agent or any
authenticating agent shall be affected by any notice to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
16
SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in such Security or in a
Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii)
otherwise in accordance with written instructions or such other written form of
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified in such Security or in the applicable Company Order. With
respect to the Securities of any series that are represented by a Global
Security, the Company authorizes the execution and delivery by the Trustee of a
letter of representations or other similar agreement or instrument in the form
customarily provided for by the Depositary appointed with respect to such Global
Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Trustee or the Security Custodian
therefor pursuant to a FAST Balance Certificate Agreement or similar agreement
between the Trustee and the Depositary. If a Company Order has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 11.05 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee or the Security
Custodian as its custodian, or under such Global Security, and the Depositary
may be treated by the Company, the Trustee or the Security Custodian and any
agent of the Company, the Trustee or the Security Custodian as the absolute
owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, (i) the registered holder of a Global Security of a series may grant
proxies and otherwise authorize any Person, including Agent Members and Persons
that may hold interests through Agent Members, to take any action that a Holder
of Securities of such series is entitled to take under this Indenture or the
Securities of such series and (ii) nothing herein shall prevent the Company, the
Trustee or the Security Custodian, or any agent of the Company, the Trustee or
the Security Custodian, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or shall impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a beneficial owner of any Security.
17
Notwithstanding Section 2.08, and except as otherwise provided
pursuant to Section 2.01: Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary. Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if, and only if,
either (1) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Security and a successor Depositary is not
appointed by the Company within 90 days of such notice, (2) an Event of Default
has occurred with respect to such series and is continuing and the Registrar has
received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver
Securities within 30 days of such request) or (3) the Company determines not to
have the Securities represented by a Global Security.
In connection with any transfer of a portion of the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interests in the Global Security to be
transferred, and the Company shall execute, and the Trustee upon receipt of a
Company Order for the authentication and delivery of Securities shall
authenticate and deliver, one or more Securities of the same series of like
tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interests in the Global Security, an equal aggregate
principal amount of Securities of authorized denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary relating to such
Securities. Neither the Company nor the Trustee shall be liable for any delay by
the related Global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such Global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
The provisions of the last sentence of the third paragraph of
Section 2.04 shall apply to any Global Security if such Global Security was
never issued and sold by the Company and the Company delivers to the Trustee the
Global Security together with written instructions (which need not comply with
Section 11.05 and need not be accompanied by an Opinion of Counsel) with regard
to the cancellation or reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01, payment of principal
of, premium (if any) and interest
18
on and any Additional Amounts with respect to any Global Security shall be made
to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and the principal amount of Securities of such series to be redeemed. The
Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to
the Trustee an Officers' Certificate stating that such redemption will comply
with the provisions of this Indenture and of the Securities of such series. Any
such notice may be canceled at any time prior to the mailing of such notice of
such redemption to any Holder and shall thereupon be void and of no effect.
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series of a specified tenor 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 (and tenor) not previously called for
redemption, either pro rata, by lot or by such other method as the Trustee shall
deem fair and appropriate and that may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of such series of a denomination larger than the minimum authorized denomination
for Securities of that series or of the principal amount of Global Securities of
such series.
The Trustee shall promptly notify the Company and the
Registrar 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 purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any of the Securities redeemed or to be redeemed only in part, to
the portion of the principal amount thereof which has been or is to be redeemed.
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SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at the address of
such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption
Price upon surrender to the Paying Agent of the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if
such is the case; and
(7) the CUSIP number, if any, relating to such Securities.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price, but interest installments whose maturity
is on or prior to such Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant
record dates specified pursuant to Section 2.01.
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SECTION 3.06 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any
Redemption Date, the Company shall deposit with the Trustee or the Paying Agent
(or, if the Company is acting as the Paying Agent, segregate and hold in trust
as provided in Section 2.06) an amount of money in same day funds sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on and any Additional Amounts with
respect to, the Securities or portions thereof which are to be redeemed on that
date, other than Securities or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, interest on
the Securities to be redeemed will cease to accrue on and after the applicable
Redemption Date, whether or not such Securities are presented for payment, and
the Holders of such Securities shall have no further rights with respect to such
Securities except for the right to receive the Redemption Price upon surrender
of such Securities. If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal, premium, if any, any
Additional Amounts, and, to the extent lawful, accrued interest thereon shall,
until paid, bear interest from the Redemption Date at the rate specified
pursuant to Section 2.01 or provided in the Securities or, in the case of
Original Issue Discount Securities, such Securities' yield to maturity.
SECTION 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be
redeemed in part, the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge a new Security
or Securities, of the same series and of 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 that
is not redeemed.
SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company and any Affiliate of the Company may, subject to applicable law, at
any time purchase or otherwise acquire Securities in the open market or by
private agreement. Any such acquisition shall not operate as or be deemed for
any purpose to be a redemption of the indebtedness represented by such
Securities. Any Securities purchased or acquired by the Company may be delivered
to the Trustee and, upon such delivery, the indebtedness represented thereby
shall be deemed to be satisfied. Section 2.13 shall apply to all Securities so
delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to
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reduction as provided in Section 3.10. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company may deliver outstanding Securities of a series
(other than any previously called for redemption) and may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such series of Securities; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate of
the Company specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivery of or by crediting Securities of that
series pursuant to Section 3.10 and will also deliver or cause to be delivered
to the Trustee any Securities to be so delivered. Failure of the Company to
timely deliver or cause to be delivered such Officers' Certificate and
Securities specified in this paragraph, if any, shall not constitute a default
but shall constitute the election of the Company (i) that the mandatory sinking
fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit
Securities of such series in respect thereof and (ii) that the Company will make
no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable
Exchange Rate on the date of original issue of the applicable Securities) or a
lesser sum if the Company shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof
as aforesaid) is available. Not less than 30 days before each such sinking fund
payment date, the Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.04. Such notice
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having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent (other than the
Company or a Subsidiary) holds on that date money deposited by the Company
designated for and sufficient to pay all principal, premium, interest and any
Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium (if any), at a rate equal to the then applicable interest rate on the
Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and any Additional Amount (without regard to any
applicable grace period) at the same rate to the extent lawful.
SECTION 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the Trustee,
the Registrar or the Paying Agent) where Securities of that series may be
presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. Unless otherwise designated by the Company by written notice to the
Trustee, such office or agency shall be the office of the Trustee in The City of
New York, which on the date hereof is located at 101 Barclay Street, Floor 8W,
New York, New York 10286. 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
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SECTION 4.03 SEC Reports; Financial Statements.
(a) If the Company is subject to the requirements of Section
13 or 15(d) of the Exchange Act, the Company shall file with the Trustee, within
15 days after it files the same with the SEC, copies of the annual reports and
the information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If this Indenture is qualified under the TIA, but not otherwise,
the Company shall also comply with the provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee shall be for
informational purposes only, and the Trustee's receipt thereof 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 Officers' Certificates or certificates delivered
pursuant to Section 4.04).
(b) If the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall furnish to all
Holders of Rule 144A Securities and prospective purchasers of Rule 144A
Securities designated by the Holders of Rule 144A Securities, promptly upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) promulgated under the Securities Act of 1933, as amended.
SECTION 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a statement signed by an
Officer of the Company, which need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officer of his duties as such Officer of the Company
he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company of its obligations under this Indenture, and further
stating that to the best of his knowledge the Company has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge and what action the Company is taking or proposes to
take with respect thereto).
(b) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence.
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SECTION 4.06 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive it from paying all
or any portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 4.07 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series or the net proceeds received from the sale or exchange of any
Security of any series, such mention shall be deemed to include mention of the
payment of Additional Amounts provided for in this Section 4.07 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to the provisions of this Section 4.07 and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
The Company shall not, in any transaction or series of
transactions, consolidate with or merge into any Person, or sell, lease, convey,
transfer or otherwise dispose of all or substantially all of its assets to any
Person, unless:
(1) either (a) the Company shall be the continuing Person or
(b) the Person (if other than the Company) formed by such consolidation
or into which the Company is merged, or to which such sale, lease,
conveyance, transfer or other disposition shall be made (collectively,
the "Successor"), is organized and validly existing under the laws of
the United States, any political subdivision thereof or any State
thereof or the District of Columbia, and expressly assumes by
supplemental indenture the due and punctual payment of the principal
of, premium (if any) and interest on and any Additional Amounts with
respect to all the Securities and the performance of the Company's
covenants and obligations under this Indenture and the Securities;
25
(2) immediately after giving effect to such transaction or
series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
transaction and such supplemental indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale,
lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, the Successor formed
by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and the Securities with the same effect as if
such Successor had been named as the Company herein and the predecessor Company,
in the case of a sale, conveyance, transfer or other disposition, shall be
released from all obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest
on or any Additional Amounts with respect to any Security of that
series when the same becomes due and payable and such default continues
for a period of 30 days;
(2) the Company defaults in the payment of (A) the
principal of any Security of that series at its Maturity or (B) premium
(if any) on any Security of that series when the same becomes due and
payable;
(3) the Company defaults in the deposit of any
sinking fund payment, when and as due by the terms of a Security of
that series, and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other
covenants or agreements in, or provisions of, the Securities of such
series or this Indenture (other than an agreement, covenant or
provision that has expressly been included in this Indenture solely for
the benefit of one or more series of Securities other than that series)
which shall
26
not have been remedied within the specified period after
written notice, as specified in the last paragraph of this
Section 6.01;
(5) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company as debtor in an
involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
a Bankruptcy Custodian for all or substantially all of the
property of the Company, or
(C) orders the liquidation of the Company; or
(7) any other Event of Default provided with respect
to Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or 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 or Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01,
if the principal of, premium (if any) or interest on or Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are not
available to the Company for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company (a
"Conversion Event"), the Company will be entitled to satisfy its obligations to
Holders of the Securities by making such payment in Dollars in an amount equal
to the Dollar equivalent of the amount payable in such other currency, as
determined by the Company by reference to the Exchange
27
Rate on the date of such payment, or, if such rate is not then available, on the
basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 6.01, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company shall give written notice thereof to the Trustee; and the Trustee,
promptly after receipt of such notice, shall give notice thereof in the manner
provided in Section 11.02 to the Holders. Promptly after the making of any
payment in Dollars as a result of a Conversion Event, the Company shall give
notice in the manner provided in Section 11.02 to the Holders, setting forth the
applicable Exchange Rate and describing the calculation of such payments.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the then outstanding Securities of the series
affected by such Default (or, in the case of a Default under clause (4) of this
Section 6.01, if outstanding Securities of other series are affected by such
Default, then at least 25% in principal amount of the then outstanding
Securities so affected) notify the Company and the Trustee, of the Default, and
the Company fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If an Event of Default with respect to any Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Securities of the series affected by such Event of Default (or,
in the case of an Event of Default described in clause (4) of Section 6.01, if
outstanding Securities of other series are affected by such Event of Default,
then at least 25% in principal amount of the then outstanding Securities so
affected) by notice to the Company and the Trustee, may declare the principal of
(or, if any such Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) and all
accrued and unpaid interest on all then outstanding Securities of such series or
of all series, as the case may be, to be due and payable. Upon any such
declaration, the amounts due and payable on the Securities shall be due and
payable immediately. If an Event of Default specified in clause (5) or (6) of
Section 6.01 hereof occurs, such amounts shall ipso facto become and be
immediately due and payable without any declaration, notice or other act on the
part of the Trustee or any Holder. The Holders of a majority in principal amount
of the then outstanding Securities of the series affected by such Event of
Default or all series, as the case may be, by written notice to the Trustee may
rescind an acceleration and its consequences (other than nonpayment of principal
of or premium or interest on or any Additional Amounts with respect to the
Securities) if the rescission would not conflict with any judgment or decree and
if all existing Events of Default with respect to Securities of that series (or
of all series, as the case may be) have been cured or waived, except nonpayment
of principal, premium, interest or any Additional Amounts that has become due
solely because of the acceleration.
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SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series or all series, as
the case may be, and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or all
series or a solicitation of consents in respect of Securities of such series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of such series or all series (but the
terms of such offer or solicitation may vary from series to series)), except (1)
a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security or (2) a continued Default in respect of a provision that under Section
9.02 cannot be amended or supplemented without the consent of each Holder
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 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 6.01, and with respect to all Securities,
the Holders of a majority in principal amount of all the then outstanding
Securities affected may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it not relating to or arising under such an
Event of Default. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability; provided, however, that the Trustee may take any
other action deemed proper by the Trustee that is not inconsistent with such
direction. Prior to taking any action hereunder, the Trustee shall be entitled
to indemnification satisfactory to it in its sole discretion from Holders
directing the Trustee against all losses and expenses caused by taking or not
taking such action.
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SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of
Section 6.01 hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company for the amount of principal, premium (if any), interest and any
Additional Amounts remaining unpaid on the Securities of the series affected by
the Event of Default, and interest on overdue principal and premium, if any,
and, to the extent lawful, interest on overdue interest, and 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.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of
30
any committee of creditors, as may be necessary or advisable to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company or its
creditors or properties and shall be entitled and empowered to collect, receive
and distribute any money or other property payable or deliverable on any such
claims and any Bankruptcy Custodian 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 to 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 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Securities may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 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 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 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall, subject to Article X, pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money
has been collected, for principal, premium (if any), interest and any
Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any), interest and any Additional Amounts,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
record dates and payment dates for any payment to Holders pursuant to this
Article VI.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining a judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of, premium (if any) or
interest on or Additional Amounts with respect to the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York next preceding that on which final judgment
is given. Neither the Company nor the
31
Trustee shall be liable for any shortfall nor shall it benefit from any windfall
in payments to Holders of Securities under this Section 6.10 caused by a change
in exchange rates between the time the amount of a judgment against it is
calculated as above and the time the Trustee converts the Judgment Currency into
the Required Currency to make payments under this Section 6.10 to Holders of
Securities, but payment of such judgment shall discharge all amounts owed by the
Company on the claim or claims underlying such judgment.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, 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. However, the Trustee shall examine such certificates
and opinions to determine whether, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
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(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee shall,
until applied as herein provided, be held in trust for the payment of the
principal of, premium (if any) and interest on and Additional Amounts with
respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers' Certificate or an Opinion of Counsel or both
to be provided. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such instruction, Officers' Certificate or
Opinion of Counsel. The Trustee may consult at the Company's expense with
counsel of its selection and the 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.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
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(f) The Trustee shall not be obligated 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, other evidence of indebtedness or other paper or
document.
(g) 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 each agent, custodian and other Person employed
to act hereunder.
(h) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights and duties. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof, it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee and it shall not be responsible for any statement
or recital herein or any statement in the Securities other than its certificate
of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such series a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if
any) and interest on and Additional Amounts or any sinking fund installment with
respect to the Securities of such series, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Holders of Securities of such
series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each September 15 of each year after the
execution of this Indenture, the Trustee shall mail to Holders of a series and
the Company a brief report dated as of such reporting date that complies with
TIA Section 313(a); provided, however, that if no event
34
described in TIA Section 313(a) has occurred within the twelve months preceding
the reporting date with respect to a series, no report need be transmitted to
Holders of such series. The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports if and as required by TIA
Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of
a series of Securities shall be filed by the Company with the SEC and each
securities exchange, if any, on which the Securities of such series are listed.
The Company shall notify the Trustee if and when any series of Securities is
listed on any securities exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of
this Indenture and services hereunder such compensation as the Company and the
Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company agrees to reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company hereby indemnifies the Trustee and any predecessor
Trustee against any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based upon, measured by or determined by the income of
the Trustee), incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through the
Trustee's negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of any series. Such lien and the Company's obligations
under this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
35
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Securities of
any series may remove the Trustee with respect to the Securities of such series
by so notifying the Trustee and the Company. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Company 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). Within one
year after the successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of the Securities of
such series then outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 30 days after the retiring or removed Trustee
resigns or is removed, the retiring or removed Trustee (at the expense of the
Company), the Company or the Holders of at least 10% in principal amount of the
then outstanding Securities of such series may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with respect
to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
In case of the appointment 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
36
with respect to the Securities of one or more (but not all) series shall execute
and deliver an indenture supplemental hereto in which each successor Trustee
shall accept such appointment and that (1) shall confer to each successor
Trustee all the rights, powers 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, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall confirm that all the rights, powers 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 (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee. Nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees of
the same trust, and 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. Upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee shall
have all the rights, powers 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. On request of the Company or any successor Trustee,
such retiring Trustee shall transfer to such successor Trustee all property held
by such retiring Trustee as Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates. Such
retiring Trustee shall, however, have the right to deduct its unpaid fees and
expenses, including attorneys' fees.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section 7.07
shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have.
37
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation or banking association organized and doing business under the laws
of the United States, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust power, shall be subject
to supervision or examination by Federal or State (or the District of Columbia)
authority and shall have, or be a subsidiary of a bank or bank holding company
having, a combined capital and surplus of at least $50 million as set forth in
its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against the Company.
The Trustee is subject to and shall comply with the provisions
of TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of the Company's Obligations.
(a) This Indenture shall cease to be of further effect with
respect to the Securities of a series (except that the Company's obligations
under Section 7.07, the Trustee's and Paying Agent's obligations under Section
8.03 and the rights, powers, protections and privileges accorded the Trustee
under Article VII shall survive), and the Trustee, on demand of the Company,
shall execute proper instruments acknowledging the satisfaction and discharge of
this Indenture with respect to the Securities of such series, when:
(1) either:
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
38
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and, in the case of clause (i), (ii) or (iii) above, the
Company has irrevocably deposited or caused to be deposited
with the Trustee as funds (immediately available to the
Holders in the case of clause (i)) in trust for such purpose
(x) cash in an amount, or (y) Government Obligations, maturing
as to principal and interest at such times and in such amounts
as will ensure the availability of cash in an amount or (z) a
combination thereof, which will be sufficient, in the opinion
(in the case of clauses (y) and (z)) of a nationally
recognized firm of independent public accountants expressed in
a written certification thereof delivered to the Trustee, to
pay and discharge the entire indebtedness on the Securities of
such series for principal and interest to the date of such
deposit (in the case of Securities which have become due and
payable) or for principal, premium, if any, and interest to
the Stated Maturity or Redemption Date, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 2.01, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable by it hereunder with respect to the Securities of such series;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of a series as contemplated by Section 2.01, the
Company may, at its option, terminate certain of its obligations under this
Indenture ("covenant defeasance") with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of
Securities of such series, (i) money in the currency in which payment
of the Securities of such series is to be made in an amount, or (ii)
Government Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts as will ensure
the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a
combination thereof, that is sufficient, in the opinion (in the case of
clauses (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and premium (if any)
and interest on all Securities of such series on each date that such
principal, premium (if any) or interest is
39
due and payable and (at the Stated Maturity thereof or upon redemption
as provided in Section 8.01(e)) to pay all other sums payable by it
hereunder; provided that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such Government
Obligations to the payment of said principal, premium (if any) and
interest with respect to the Securities of such series as the same
shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from a nationally recognized counsel acceptable to the
Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for U.S. Federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.01(b) 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 option had not been exercised;
(5) the Company has complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b).
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee, on demand of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture. However, the Company's obligations in Sections
2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08 and 8.04, the Trustee's and
Paying Agent's obligations in Section 8.03 and the rights, powers, protections
and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
In order to have money available on a payment date to pay
principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuer's option.
40
(c) If the Company has previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are expressly applicable only to covenant
defeasance) with respect to Securities of a series, then, unless this Section
8.01(c) is specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect that its obligations to make
payments with respect to Securities of such series be discharged ("legal
defeasance"), if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated by
Section 8.01(b) (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section
8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed
to the Company, (ii) a published ruling of the Internal Revenue Service
pertaining to a comparable form of transaction or (iii) a change in the
applicable federal income tax law (including regulations) after the
date of this Indenture;
(3) the Company has complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section
8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting such legal defeasance of the Securities of such series and
an Officers' Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such series have
been complied with, together with an Opinion of Counsel to the same
effect.
In such event, the Company will be discharged from its
obligations under this Indenture and the Securities of such series to pay
principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of such series, the Company's obligations under Sections
4.01 and 4.02 shall terminate with respect to such Securities, and the entire
indebtedness of the Company evidenced by such Securities shall be deemed paid
and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Company may
terminate any or all of its obligations under this Indenture with respect to
Securities of a series and any or all of its obligations under the Securities of
such series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions,
41
the terms of the applicable trust arrangement shall provide for such redemption,
and the Company shall make such arrangements as are reasonably satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the
money from Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made. Money and securities held in
trust are not subject to Article X.
SECTION 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company any excess money or Government Obligations (or proceeds therefrom) held
by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remain unclaimed for two years
after the date upon which such payment shall have become due. After payment to
the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 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
obligations of the Company under this Indenture with respect to the Securities
of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or the Paying Agent is permitted to apply all such money or
Government Obligations in accordance with Section 8.01; provided, however, that
if the Company has made any payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Securities 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 Government Obligations held by the Trustee or the Paying Agent.
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ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture or the Securities or waive any provision hereof or thereof without the
consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or to provide for the issuance of
bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of
or additional obligors on, any series of Securities;
(5) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series), or to surrender any right or power herein
conferred upon the Company;
(7) to add any additional Events of Default with respect to
all or any series of the Securities (and, if any Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such amendment or supplemental
indenture that is adversely affected in any material respect by such
change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series
as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 8.01; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
43
(11) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company
in the execution of any supplemental indenture authorized or permitted by the
terms of this Indenture and make any further appropriate agreements and
stipulations that may be therein contained.
SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and
the Trustee may amend or supplement this Indenture with the written consent
(including consents obtained in connection with a tender offer or exchange offer
for Securities of any one or more series or all series or a solicitation of
consents in respect of Securities of any one or more series or all series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of each such series (but the terms of such offer or
solicitation may vary from series to series)) of the Holders of at least a
majority in principal amount of the then outstanding Securities of all series
affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of the consent of
the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company in the execution of such amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the then
outstanding Securities of one or more series or of all series may waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to Securities of such series (including waivers obtained
in connection with a tender offer or exchange offer for Securities of such
series or a solicitation of consents in respect of Securities of such series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of such series (but the terms of such offer or
solicitation may vary from series to series)).
However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
44
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory
sinking fund payment with respect to, or change the Stated Maturity of,
any Security or reduce the amount of the principal of an Original Issue
Discount Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of
any Security or change the time at which any Security may or shall be
redeemed;
(5) change any obligation of the Company to pay Additional
Amounts with respect to any Security;
(6) change the coin or currency or currencies (including
composite currencies) in which any Security or any premium, interest or
Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of
any payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security pursuant to Sections
6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or make any change in
this sentence of Section 9.02;
(9) modify the provisions of this Indenture with respect to
the subordination of any Security in a manner adverse to the Holder
thereof; or
(10) waive a continuing Default or Event of Default in the
payment of principal of, premium (if any) or interest on or Additional
Amounts with respect to the Securities.
An amendment under this Section 9.02 may not make any change
that adversely affects the rights under Article X of any holder of an issue of
Senior Debt unless the holders of the issue pursuant to its terms consent to the
change.
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 which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required
45
or sought as of a date identified by the Company in a notice furnished to
Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before a date and time therefor identified
by the Company in a notice furnished to such Holder in accordance with the terms
of this Indenture or, if no such date and time shall be identified, the date the
amendment, supplement or waiver becomes effective. An amendment, supplement or
waiver becomes effective in accordance with its terms and thereafter binds every
Holder.
The Company may, but shall not be obligated to, fix a record
date (which need not comply with TIA Section 316(c)) for the purpose of
determining the Holders entitled to consent to any amendment, supplement or
waiver or to take any other action under this Indenture. If a record date is
fixed, then notwithstanding the provisions of the immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly
designated proxies), and only those Persons, shall be entitled to consent to
such amendment, supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from Holders of the principal amount of Securities required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses
(1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement
or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may
46
place an appropriate notation on the Security at the request of the Company
regarding the changed terms and return it to the Holder. Alternatively, if the
Company so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the
execution of any amendment or supplement 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 or supplement.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel provided at the expense of the Company as
conclusive evidence that such amendment or supplement is authorized or permitted
by this Indenture, that it is not inconsistent herewith, and that it will be
valid and binding upon the Company in accordance with its terms.
ARTICLE X
SUBORDINATION OF SECURITIES
SECTION 10.01 Securities Subordinated to Senior Debt.
The Company and each Holder of a Security of a series, by his
acceptance thereof, agree that (a) the payment of the principal of, premium (if
any) and interest on and any Additional Amounts with respect to each and all the
Securities of such series and (b) any other payment in respect of the Securities
of such series, including on account of the acquisition or redemption of
Securities of such series by the Company, is subordinated, to the extent and in
the manner provided in this Article X, to the prior payment in full of all
Senior Debt of the Company, whether outstanding at the date of this Indenture or
thereafter created, incurred, assumed or guaranteed, and that these
subordination provisions are for the benefit of the holders of Senior Debt.
This Article X shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Debt, and such provisions are made for the benefit of the holders
of Senior Debt, and such holders are made obligees hereunder and any one or more
of them may enforce such provisions.
SECTION 10.02 No Payment on Securities in Certain Circumstances.
(a) Unless otherwise provided with respect to the Securities
of a series as contemplated by Section 2.01, no payment shall be made by or on
behalf of the Company on account of the principal of, premium (if any) or
interest on or any Additional Amounts with
47
respect to the Securities of any series or to acquire any Securities of such
series (including any repurchases of Securities of such series pursuant to the
provisions thereof at the option of the Holder thereof) for cash or property, or
on account of any redemption provisions of Securities of such series, in the
event of default in payment of any principal of, premium (if any) or interest on
any Senior Debt of the Company when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by acceleration of maturity or
otherwise (a "Payment Default"), unless and until such Payment Default has been
cured or waived or otherwise has ceased to exist or such Senior Debt shall have
been discharged or paid in full.
(b) In furtherance of the provisions of Section 10.01, in the
event that, notwithstanding the foregoing provisions of this Section 10.02, any
payment or distribution of assets of the Company shall be received by the
Trustee, the Paying Agent or the Holders of Securities of any series at a time
when such payment or distribution was prohibited by the provisions of this
Section 10.02, then, unless such payment or distribution is no longer prohibited
by this Section 10.02, such payment or distribution (subject to the provisions
of Section 10.07) shall be received and held in trust by the Trustee, the Paying
Agent or such Holder for the benefit of the holders of Senior Debt of the
Company, and shall be paid or delivered by the Trustee, the Paying Agent or such
Holders, as the case may be, to the holders of Senior Debt of the Company
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Debt of the Company may have been issued,
ratably, according to the aggregate amounts remaining unpaid on account of such
Senior Debt of the Company held or represented by each, for application to the
payment of all Senior Debt in full after giving effect to all concurrent
payments and distributions to or for the holders of such Senior Debt.
SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Debt on
Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or similar proceeding or upon assignment for the benefit of
creditors:
(1) the holders of all Senior Debt of the Company shall first
be entitled to receive payments in full before the Holders of
Securities of any series are entitled to receive any payment on account
of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to Securities of such series;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of Securities of any series or the Trustee on behalf
of such Holders would be entitled, except for the provisions of this
Article X, shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution directly to the holders of
such Senior Debt or their representative, ratably according to the
respective amounts of Senior Debt held or represented by each, to the
extent necessary to make payment in full of all such Senior Debt
remaining unpaid after giving effect to all concurrent payments and
distributions to the holders of such Senior Debt; and
48
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of Securities of any series or any Paying
Agent (or, if the Company or any Subsidiary is acting as the Paying
Agent, money for any such payment or distribution shall be segregated
or held in trust) on account of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to the Securities of
such series before all Senior Debt of the Company is paid in full, such
payment or distribution (subject to the provisions of Section 10.07)
shall be received and held in trust by the Trustee or such Holder or
Paying Agent for the benefit of the holders of such Senior Debt, or
their respective representatives, ratably according to the respective
amounts of such Senior Debt held or represented by each, to the extent
necessary to make payment as provided herein of all such Senior Debt
remaining unpaid after giving effect to all concurrent payments and
distributions and all provisions therefor to or for the holders of such
Senior Debt, but only to the extent that as to any holder of such
Senior Debt, as promptly as practical following notice from the Trustee
to the holders of such Senior Debt that such prohibited payment has
been received by the Trustee, Holder(s) or Paying Agent (or has been
segregated as provided above), such holder (or a representative
therefor) notifies the Trustee of the amounts then due and owing on
such Senior Debt, if any, held by such holder and only the amounts
specified in such notices to the Trustee shall be paid to the holders
of such Senior Debt.
SECTION 10.04 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt of the
Company as provided herein, the Holders of the Securities of any series shall be
subrogated (to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article X) to the rights
of the holders of such Senior Debt to receive payments or distributions of
assets of the Company applicable to the Senior Debt until all amounts owing on
the Securities of such series shall be paid in full. For the purpose of such
subrogation, no such payments or distributions to the holders of such Senior
Debt by the Company, or by or on behalf of the Holders of the Securities of such
series by virtue of this Article X, which otherwise would have been made to such
Holders shall, as between the Company and such Holders, be deemed to be payment
by the Company or on account of such Senior Debt, it being understood that the
provisions of this Article X are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities of a series, on
the one hand, and the holders of such Senior Debt, on the other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article X shall have been applied, pursuant to the provisions of this Article X,
to the payment of amounts payable under Senior Debt of the Company, then such
Holders shall be entitled to receive from the holders of such Senior Debt any
payments or distributions received by such holders of Senior Debt in excess of
the amount sufficient to pay all amounts payable under or in respect of such
Senior Debt in full.
49
SECTION 10.05 Obligations of the Company Unconditional.
Nothing contained in this Article X or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders of the Securities of any series, the obligation of the
Company, which is absolute and unconditional, to pay to such Holders the
principal of, premium (if any) and interest on and any Additional Amounts with
respect to the Securities of such series as and when the same shall become due
and payable in accordance with their terms, or is intended to or shall affect
the relative rights of such Holders and creditors of the Company other than the
holders of the Senior Debt, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article X, of the holders of Senior Debt in respect of cash, property
or securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article X or elsewhere in this
Indenture or in the Securities, upon any distribution of assets of the Company
referred to in this Article X, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to such Holders for the purpose
of ascertaining the Persons entitled to participate in such distribution, the
holders of the Senior Debt and other Debt of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article X so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article X.
SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.
The Trustee shall not at any time be charged with knowledge of
the existence of any facts that would prohibit the making of any payment to or
by the Trustee unless and until a Responsible Officer of the Trustee or any
Paying Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Debt or from any representative thereof and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Sections 7.01 and
7.02, shall be entitled in all respects conclusively to assume that no such fact
exists.
SECTION 10.07 Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Holders of
Securities of the series for the benefit of which such amounts were deposited,
and, to the extent allocated for the payment of Securities of such series, shall
not be subject to the subordination provisions of this Article X. Otherwise, any
deposit of assets with the Trustee or the Paying Agent (whether or not in trust)
for the payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Securities of any series shall be subject
to the provisions of Sections 10.01, 10.02, 10.03 and 10.04; provided that if
prior to two Business Days preceding the date on which by the terms of this
Indenture any such assets may become distributable for any purpose (including,
without limitation, the payment of either principal of, premium (if any) or
interest on or any Additional
50
Amounts with respect to any Security), a Responsible Officer of the Trustee or
such Paying Agent shall not have received with respect to such assets the
written notice provided for in Section 10.06, then the Trustee or such Paying
Agent shall have full power and authority to receive such assets and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary that may be received by it on or after such date;
and provided further that nothing contained in this Article X shall prevent the
Company from making, or the Trustee from receiving or applying, any payment in
connection with the redemption of Securities of a series if the first
publication of notice of such redemption (whether by mail or otherwise in
accordance with this Indenture) has been made, and the Trustee has received such
payment from the Company, prior to the occurrence of any of the contingencies
specified in Section 10.02 or 10.03.
SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Debt.
No right of any present or future holders of any Senior Debt
to enforce subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with. The holders of Senior Debt may extend, renew, modify or
amend the terms of the Senior Debt or any security therefor and release, sell or
exchange such security and otherwise deal freely with the Company, all without
affecting the liabilities and obligations of the parties to this Indenture or
the Holders of the Securities of any series.
SECTION 10.09 Trustee to Effectuate Subordination of Securities.
Each Holder of a Security of any series by his acceptance
thereof authorizes and expressly directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provisions contained in this Article X and to protect the rights of the Holders
of the Securities of such series pursuant to this Indenture, and appoints the
Trustee his attorney-in-fact for such purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the Company (whether
in bankruptcy, insolvency or receivership proceedings or upon an assignment for
the benefit of creditors of the Company), the filing of a claim for the unpaid
balance of his Securities in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper claim or proof
of debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holders of the
Senior Debt or their representative is hereby authorized to have the right to
file and is hereby authorized to file an appropriate claim for and on behalf of
the Holders of Securities of such series. Nothing contained herein shall be
deemed to authorize the Trustee or the holders of Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any
Holder of Securities of any series any plan of reorganization, arrangement,
adjustment or composition affecting the Securities of such series or the rights
of any Holder thereof, or to authorize the Trustee or the holders of Senior Debt
or their representative to vote in respect of the claim of any Holder of the
Securities of such series in any such proceeding.
51
SECTION 10.10 Right of Trustee to Hold Senior Debt.
The Trustee in its individual capacity shall be entitled to
all of the rights set forth in this Article X in respect of any Senior Debt at
any time held by it to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
SECTION 10.11 Article X Not to Prevent Events of Default.
The failure to make a payment on account of principal of or
premium (if any) or interest on the Securities of any series by reason of any
provision of this Article X shall not be construed as preventing the occurrence
of a Default or an Event of Default under Section 6.01 with respect to
Securities of such series or in any way prevent the Holders of the Securities of
such series from exercising any right hereunder other than the right to receive
payment on the Securities of such series.
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt, and shall not be liable to any such holders (other
than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities of any series
or the Company or any other Person, cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article X or
otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Debt or their representative.
SECTION 10.13 Article Applicable to Paying Agent.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article X shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article X in addition to or in place of the Trustee;
provided, however, that this Section 10.13 shall not apply to the Company or any
Subsidiary if the Company or such Subsidiary acts as Paying Agent.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
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SECTION 11.02 Notices.
Any notice or communication by the Company or the Trustee to
the other is duly given if in writing and delivered in person or mailed by
first-class mail (registered or certified, return receipt requested), telex,
facsimile or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attn: General Counsel
Telephone: (281) 293-1000
Facsimile: (281) 293-1600
If to the Trustee:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attn: Corporate Trust Administration
Telephone: (212) 815-5498
Facsimile: (212) 815-5707
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, postage prepaid, to the Holder's address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only
when received.
If the Company mails a notice or communication to Holders, it
shall mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation
notices to the Trustee or the Company by Holders, shall be in writing, except as
otherwise set forth herein.
53
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall, if requested by the
Trustee, furnish to the Trustee at the expense of the Company:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
54
SECTION 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or the Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other
owner of the Company or the Trustee, as such, shall not have any liability for
any obligations of the Company under the Securities or for any obligations of
the Company or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of Securities.
SECTION 11.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any Subsidiary. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the Trustee in this
Indenture shall bind its successors.
SECTION 11.12 Severability.
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, to the fullest extent
permitted by applicable law, not in any way be affected or impaired thereby.
55
SECTION 11.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
56
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CONOCOPHILLIPS
By:
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
------------------------------------------
Name:
Title:
57
Exhibit 4.7.1
DECLARATION OF TRUST, dated as of November 6, 2002 between
ConocoPhillips, a Delaware corporation, as Sponsor (the "Sponsor"), and The Bank
of New York, as trustee (the "Property Trustee"), The Bank of New York
(Delaware), as trustee (the "Delaware Trustee"), and Jeff W. Sheets, as trustee
(collectively with the Property Trustee and the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The Delaware statutory trust created hereby shall be known as
"ConocoPhillips Trust I" (the "Trust"), in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. The Trust hereby acknowledges receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate. It is
the intention of the parties hereto that the Trust created hereby constitute a
statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq. (the "Statutory Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in accordance with the provisions of
the Statutory Trust Act. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities representing
undivided beneficial interests in the assets of the Trust ("Preferred
Securities") in exchange for cash and investing the proceeds thereof in debt
securities of the Sponsor, (ii) issuing and selling common securities
representing undivided beneficial interests in the assets of the Trust ("Common
Securities") to the Sponsor or an affiliate of the Sponsor in exchange for cash
and investing the proceeds thereof in additional debt securities of the Sponsor
and (iii) engaging in such other activities as are necessary or incidental
thereto.
3. The Sponsor and the Trustees will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such Amended and Restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized
(i) to prepare and file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) a
Registration Statement on Form S-3 or on such other form or forms as may be
appropriate, including without limitation any registration statement of the type
contemplated by Rule 462(b) of the Securities Act of 1933, as amended (the
"Securities Act") (any such registration statement, whether on Form S-3, another
form or under Rule 462(b) being referred to herein as the "Securities Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement (including any preliminary prospectus,
prospectus or prospectus supplement, and the exhibits thereto), relating to the
registration under the Securities Act of the Preferred Securities and certain
other securities
of the Sponsor and (b) if the Sponsor shall deem it desirable, a Registration
Statement on Form 8-A (the "Exchange Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities under Section 12 of the Securities
Exchange Act of 1934, as amended; (ii) if the Sponsor shall deem it desirable,
to prepare and file with the New York Stock Exchange, Inc. or any other
automated quotation system, exchange or over-the-counter market (each, an
"Exchange") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary, appropriate or desirable to cause
the Preferred Securities to be listed on any Exchange; (iii) to prepare and file
and execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as the Sponsor, on behalf of the Trust, may deem necessary,
appropriate or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary, appropriate or desirable; (iv) to negotiate the
terms of and execute, or to cause any natural person appointed pursuant to
Section 6 hereof, in his or her capacity as trustee of the Trust (a "Regular
Trustee"), to execute, on behalf of the Trust an underwriting or other purchase
agreement among the Trust, the Sponsor and any underwriter(s), dealer(s) or
agent(s) relating to the Preferred Securities, as the Sponsor, on behalf of the
Trust, may deem necessary, appropriate or desirable; and (v) to execute and
deliver, or to cause the Regular Trustee to execute and deliver, on behalf of
the Trust letters or documents to, or instruments for filing with, a depositary
relating to the Preferred Securities. In the event that any filing referred to
in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, any Exchange, the National Association of Securities Dealers, Inc.
or any state or foreign securities or blue sky laws, to be executed on behalf of
the Trust by a Trustee, a Regular Trustee, in his or her capacity as Trustee of
the Trust, and the Sponsor are hereby authorized to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor that may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided, further that to the
extent required by the Statutory Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity that has its principal place of business in the State of
Delaware and meets other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days' prior written notice
to the Sponsor.
7. The Trust may be dissolved and terminated at the election of the
Sponsor.
8. To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless any Trustee, any affiliate of any Trustee, any
paying agent, any officer, director, shareholder, member, partner or employee of
any Trustee or paying agent, or any employee or agent of the Trust or of any of
its affiliates, including but not limited to any
2
officer or director of the Sponsor (an "Indemnified Person") from and against
any loss, liability, expense, damage or claim incurred by such Indemnified
Person arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration of Trust,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, liability, expense, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or omissions.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
CONOCOPHILLIPS,
as Sponsor
By: /s/ Jeff W. Sheets
--------------------------------------
Jeff W. Sheets
Vice President and Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Van K. Brown
--------------------------------------
Van K. Brown
Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ William T. Lewis
--------------------------------------
William T. Lewis
Senior Vice President
JEFF W. SHEETS,
as Regular Trustee
/s/ Jeff W. Sheets
--------------------------------------
Exhibit 4.7.2
DECLARATION OF TRUST, dated as of November 6, 2002 between
ConocoPhillips, a Delaware corporation, as Sponsor (the "Sponsor"), and The Bank
of New York, as trustee (the "Property Trustee"), The Bank of New York
(Delaware), as trustee (the "Delaware Trustee"), and Jeff W. Sheets, as trustee
(collectively with the Property Trustee and the Delaware Trustee, the
"Trustees"). The Sponsor and the Trustees hereby agree as follows:
1. The Delaware statutory trust created hereby shall be known as
"ConocoPhillips Trust II" (the "Trust"), in which name the Trustees, or the
Sponsor to the extent provided herein, may conduct the business of the Trust,
make and execute contracts, and sue and be sued.
2. The Sponsor hereby assigns, transfers, conveys and sets over to
the Trust the sum of $10. The Trust hereby acknowledges receipt of such amount
from the Sponsor, which amount shall constitute the initial trust estate. It is
the intention of the parties hereto that the Trust created hereby constitute a
statutory trust under Chapter 38 of Title 12 of the Delaware Code, 12 Del. Code
Section 3801 et seq. (the "Statutory Trust Act"), and that this document
constitutes the governing instrument of the Trust. The Trustees are hereby
authorized and directed to execute and file a certificate of trust with the
Secretary of State of the State of Delaware in accordance with the provisions of
the Statutory Trust Act. The Trust is hereby established by the Sponsor and the
Trustees for the purposes of (i) issuing preferred securities representing
undivided beneficial interests in the assets of the Trust ("Preferred
Securities") in exchange for cash and investing the proceeds thereof in debt
securities of the Sponsor, (ii) issuing and selling common securities
representing undivided beneficial interests in the assets of the Trust ("Common
Securities") to the Sponsor or an affiliate of the Sponsor in exchange for cash
and investing the proceeds thereof in additional debt securities of the Sponsor
and (iii) engaging in such other activities as are necessary or incidental
thereto.
3. The Sponsor and the Trustees will enter into an Amended and
Restated Declaration of Trust, satisfactory to each such party, to provide for
the contemplated operation of the Trust created hereby and the issuance of the
Preferred Securities and Common Securities referred to therein. Prior to the
execution and delivery of such Amended and Restated Declaration of Trust, the
Trustees shall not have any duty or obligation hereunder or with respect to the
trust estate, except as otherwise required by applicable law or as may be
necessary to obtain prior to such execution and delivery any licenses, consents
or approvals required by applicable law or otherwise.
4. The Sponsor, as the sponsor of the Trust, is hereby authorized
(i) to prepare and file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) a
Registration Statement on Form S-3 or on such other form or forms as may be
appropriate, including without limitation any registration statement of the type
contemplated by Rule 462(b) of the Securities Act of 1933, as amended (the
"Securities Act") (any such registration statement, whether on Form S-3, another
form or under Rule 462(b) being referred to herein as the "Securities Act
Registration Statement"), including any pre-effective or post-effective
amendments to such Registration Statement (including any preliminary prospectus,
prospectus or prospectus supplement, and the exhibits thereto), relating to the
registration under the Securities Act of the Preferred Securities and certain
other securities
of the Sponsor and (b) if the Sponsor shall deem it desirable, a Registration
Statement on Form 8-A (the "Exchange Act Registration Statement"), including all
pre-effective and post-effective amendments thereto, relating to the
registration of the Preferred Securities under Section 12 of the Securities
Exchange Act of 1934, as amended; (ii) if the Sponsor shall deem it desirable,
to prepare and file with the New York Stock Exchange, Inc. or any other
automated quotation system, exchange or over-the-counter market (each, an
"Exchange") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates, agreements
and other instruments as shall be necessary, appropriate or desirable to cause
the Preferred Securities to be listed on any Exchange; (iii) to prepare and file
and execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as the Sponsor, on behalf of the Trust, may deem necessary,
appropriate or desirable to register the Preferred Securities under the
securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on behalf of
the Trust, may deem necessary, appropriate or desirable; (iv) to negotiate the
terms of and execute, or to cause any natural person appointed pursuant to
Section 6 hereof, in his or her capacity as trustee of the Trust (a "Regular
Trustee"), to execute, on behalf of the Trust an underwriting or other purchase
agreement among the Trust, the Sponsor and any underwriter(s), dealer(s) or
agent(s) relating to the Preferred Securities, as the Sponsor, on behalf of the
Trust, may deem necessary, appropriate or desirable; and (v) to execute and
deliver, or to cause the Regular Trustee to execute and deliver, on behalf of
the Trust letters or documents to, or instruments for filing with, a depositary
relating to the Preferred Securities. In the event that any filing referred to
in clauses (i)-(iii) above is required by the rules and regulations of the
Commission, any Exchange, the National Association of Securities Dealers, Inc.
or any state or foreign securities or blue sky laws, to be executed on behalf of
the Trust by a Trustee, a Regular Trustee, in his or her capacity as Trustee of
the Trust, and the Sponsor are hereby authorized to join in any such filing and
to execute on behalf of the Trust any and all of the foregoing.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Sponsor that may increase or
decrease the number of Trustees; provided, however, that the number of Trustees
shall in no event be less than three (3); and provided, further that to the
extent required by the Statutory Trust Act, one Trustee shall either be a
natural person who is a resident of the State of Delaware or, if not a natural
person, an entity that has its principal place of business in the State of
Delaware and meets other requirements imposed by applicable law. Subject to the
foregoing, the Sponsor is entitled to appoint or remove without cause any
Trustee at any time. Any Trustee may resign upon 30 days' prior written notice
to the Sponsor.
7. The Trust may be dissolved and terminated at the election of the
Sponsor.
8. To the fullest extent permitted by applicable law, the Sponsor
shall indemnify and hold harmless any Trustee, any affiliate of any Trustee, any
paying agent, any officer, director, shareholder, member, partner or employee of
any Trustee or paying agent, or any employee or agent of the Trust or of any of
its affiliates, including but not limited to any
2
officer or director of the Sponsor (an "Indemnified Person") from and against
any loss, liability, expense, damage or claim incurred by such Indemnified
Person arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder or by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within the scope of
authority conferred on such Indemnified Person by this Declaration of Trust,
except that no Indemnified Person shall be entitled to be indemnified in respect
of any loss, liability, expense, damage or claim incurred by such Indemnified
Person by reason of gross negligence (or, in the case of the Property Trustee,
negligence) or willful misconduct with respect to such acts or omissions.
9. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Declaration
of Trust to be duly executed as of the day and year first above written.
CONOCOPHILLIPS,
as Sponsor
By: /s/ Jeff W. Sheets
--------------------------------------
Jeff W. Sheets
Vice President and Treasurer
THE BANK OF NEW YORK,
as Property Trustee
By: /s/ Van K. Brown
--------------------------------------
Van K. Brown
Vice President
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By: /s/ William T. Lewis
--------------------------------------
William T. Lewis
Senior Vice President
JEFF W. SHEETS,
as Regular Trustee
/s/ Jeff W. Sheets
--------------------------------------
EXHIBIT 4.8
================================================================================
FORM OF
AMENDED AND RESTATED DECLARATION OF TRUST
OF
CONOCOPHILLIPS TRUST [I] [II]
_________________________________________
DATED AS OF ________________, ____
_________________________________________
================================================================================
TABLE OF CONTENTS
PAGE
----
ARTICLE 1 Definitions..................................................................................1
SECTION 1.01 Definitions..................................................................................1
ARTICLE 2 TRUST INDENTURE ACT..........................................................................8
SECTION 2.01 Trust Indenture Act; Application.............................................................8
SECTION 2.02 Lists of Holders of Preferred Securities.....................................................9
SECTION 2.03 Reports by the Property Trustee..............................................................9
SECTION 2.04 Periodic Reports to the Property Trustee.....................................................9
SECTION 2.05 Evidence of Compliance with Conditions Precedent............................................10
SECTION 2.06 Events of Default; Waiver...................................................................10
SECTION 2.07 Disclosure of Information...................................................................11
ARTICLE 3 ORGANIZATION................................................................................12
SECTION 3.01 Name........................................................................................12
SECTION 3.02 Office......................................................................................12
SECTION 3.03 Issuance of the Securities..................................................................12
SECTION 3.04 Purchase of Debentures......................................................................13
SECTION 3.05 Purpose.....................................................................................13
SECTION 3.06 Authority...................................................................................14
SECTION 3.07 Title to Property of the Trust..............................................................14
SECTION 3.08 Powers and Duties of the Regular Trustees...................................................14
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees........................................16
SECTION 3.10 Powers and Duties of the Property Trustee...................................................18
SECTION 3.11 Delaware Trustee............................................................................21
SECTION 3.12 Certain Rights and Duties of the Property Trustee...........................................21
SECTION 3.13 Registration Statement and Related Matters..................................................24
SECTION 3.14 Filing of Amendments to Certificate of Trust................................................25
SECTION 3.15 Execution of Documents by the Regular Trustees..............................................25
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of Securities.............................26
SECTION 3.17 Duration of the Trust.......................................................................26
SECTION 3.18 Mergers.....................................................................................26
SECTION 3.19 Property Trustee May File Proofs of Claim...................................................28
ARTICLE 4 SPONSOR.....................................................................................29
SECTION 4.01 Purchase of Common Securities by the Sponsor................................................29
SECTION 4.02 Expenses....................................................................................29
SECTION 4.03 Holder of the Common Securities.............................................................30
ARTICLE 5 TRUSTEES....................................................................................30
SECTION 5.01 Number of Trustees; Qualifications..........................................................30
SECTION 5.02 Appointment, Removal and Resignation of the Trustees........................................32
SECTION 5.03 Vacancies among the Trustees................................................................33
ii
SECTION 5.04 Effect of Vacancies.........................................................................33
SECTION 5.05 Meetings....................................................................................34
SECTION 5.06 Delegation of Power.........................................................................34
SECTION 5.07 Merger, Conversion, Consolidation or Succession to Business.................................34
ARTICLE 6 DISTRIBUTIONS...............................................................................35
SECTION 6.01 Distributions...............................................................................35
ARTICLE 7 ISSUANCE OF THE SECURITIES..................................................................35
SECTION 7.01 General Provisions Regarding the Securities.................................................35
[SECTION 7.02 Conversion Agent............................................................................36
ARTICLE 8 DISSOLUTION OF THE TRUST....................................................................37
SECTION 8.01 Dissolution of the Trust....................................................................37
ARTICLE 9 TRANSFER OF INTERESTS.......................................................................37
SECTION 9.01 Transfer of Securities......................................................................37
SECTION 9.02 Transfer of Certificates....................................................................38
SECTION 9.03 Deemed Security Holders.....................................................................38
SECTION 9.04 Book-Entry Interests........................................................................38
SECTION 9.05 Notices to Holders of Certificates..........................................................39
SECTION 9.06 Appointment of Successor Clearing Agency....................................................39
SECTION 9.07 Definitive Preferred Security Certificates..................................................40
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates...........................................40
ARTICLE 10 LIMITATION OF LIABILITY; INDEMNIFICATION....................................................40
SECTION 10.01 Exculpation.................................................................................40
SECTION 10.02 Indemnification.............................................................................41
SECTION 10.03 Outside Business............................................................................41
ARTICLE 11 ACCOUNTING..................................................................................42
SECTION 11.01 Fiscal Year.................................................................................42
SECTION 11.02 Certain Accounting Matters..................................................................42
SECTION 11.03 Banking.....................................................................................43
SECTION 11.04 Withholding.................................................................................43
ARTICLE 12 AMENDMENTS AND MEETINGS.....................................................................43
SECTION 12.01 Amendments..................................................................................43
SECTION 12.02 Meetings of the Holders of Securities; Action by Written Consent............................44
ARTICLE 13 REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE............................46
SECTION 13.01 Representations and Warranties of the Property Trustee......................................46
SECTION 13.02 Representations and Warranties of the Delaware Trustee......................................46
ARTICLE 14 MISCELLANEOUS...............................................................................47
SECTION 14.01 Notices.....................................................................................47
iii
SECTION 14.02 Undertaking for Costs....................................................................48
SECTION 14.03 Governing Law............................................................................49
SECTION 14.04 Headings.................................................................................49
SECTION 14.05 Partial Enforceability...................................................................49
SECTION 14.06 Counterparts.............................................................................49
SECTION 14.07 Intention of the Parties.................................................................49
SECTION 14.08 Successors and Assigns...................................................................50
SECTION 14.09 No Recourse..............................................................................50
EXHIBIT A: CERTIFICATE OF TRUST
EXHIBIT B: TERMS OF THE PREFERRED SECURITIES
EXHIBIT C: TERMS OF THE COMMON SECURITIES
iv
AMENDED AND RESTATED DECLARATION OF TRUST
OF
CONOCOPHILLIPS TRUST [I] [II]
AMENDED AND RESTATED DECLARATION OF TRUST (this "Declaration")
dated and effective as of ________________, ____ by ____________, an individual,
____________, an individual, and ____________, an individual, as Regular
Trustees, The Bank of New York, a New York banking corporation, as Property
Trustee, The Bank of New York (Delaware), a Delaware banking corporation, as
Delaware Trustee, ConocoPhillips, a Delaware corporation, as trust sponsor, and
the holders, from time to time, of undivided beneficial interests in the assets
of the Trust (as hereinafter defined) to be issued pursuant to this Declaration.
WHEREAS, the Sponsor and certain of the Trustees entered into a
Declaration of Trust dated as of November 6, 2002 (the "Original Declaration")
in order to establish ConocoPhillips Trust [I] [II], a statutory trust (the
"Trust"), under the Statutory Trust Act (as hereinafter defined);
WHEREAS, the Certificate of Trust of the Trust (the
"Certificate of Trust") was filed with the office of the Secretary of State of
the State of Delaware on November 6, 2002; and
WHEREAS, the Trustees and the Sponsor desire to continue the
Trust pursuant to the Statutory Trust Act for the purpose of, as described more
fully in Sections 3.03, 3.04 and 3.05 hereof, (i) issuing and selling Preferred
Securities (as hereinafter defined) representing preferred undivided beneficial
interests in the assets of the Trust for cash and investing the proceeds thereof
in Debentures (as hereinafter defined) of ConocoPhillips issued under the
Indenture (as hereinafter defined) to be held as assets of the Trust and (ii)
issuing and selling Common Securities (as hereinafter defined) representing
common undivided beneficial interests in the assets of the Trust to
ConocoPhillips in exchange for cash and investing the proceeds thereof in
additional Debentures issued under the Indenture to be held as assets of the
Trust;
NOW, THEREFORE, it being the intention of the parties hereto
that the Trust constitute a statutory trust under the Statutory Trust Act, that
the Original Declaration be amended and restated in its entirety as provided
herein and that this Declaration constitute the governing instrument of such
statutory trust, the Trustees declare that all Debentures referred to in clauses
(i) and (ii) of the previous paragraph purchased by the Trust will be held for
the benefit of the Holders (as hereinafter defined) from time to time, of
Certificates (as hereinafter defined) representing undivided beneficial
interests in the assets of the Trust issued hereunder, subject to the provisions
of this Declaration.
ARTICLE 1
DEFINITIONS
SECTION 1.01 Definitions.
(a) Capitalized terms used in this Declaration but not defined
in the preamble or recitals above have the respective meanings assigned to them
in this Section 1.01.
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(b) A term defined anywhere in this Declaration has the same
meaning throughout.
(c) All references to "the Declaration" or "this Declaration"
are to this Amended and Restated Declaration of Trust (including Exhibits A, B
and C hereto (the "Exhibits")) as modified, supplemented or amended from time to
time.
(d) All references in this Declaration to Articles, Sections
and Exhibits are to Articles and Sections of and Exhibits to this Declaration
unless otherwise specified.
(e) A term defined in the Trust Indenture Act has the same
meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice
versa.
"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" of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Book-Entry Interest" means a beneficial interest in a Global
Certificate registered in the name of a Clearing Agency or a nominee thereof,
ownership and transfers of which shall be maintained and made through book
entries by such Clearing Agency as described in Section 9.04.
"Business Day" means any day that is not a Legal Holiday.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Certificate of Trust" has the meaning set forth in the
recitals above.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book-entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book-entry transfers and pledges of securities deposited
with the Clearing Agency.
"Closing Date" means the Closing Date as specified in the
Underwriting Agreement, which date is also the date of execution and delivery of
this Declaration.
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"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation. A reference to a specific
section (Sec.) of the Code refers not only to such specific section but also to
any corresponding provision of any U.S. federal tax statute enacted after the
date of this Declaration, as such specific section or corresponding provision is
in effect on the date of application of the provisions of this Declaration
containing such reference.
"Commission" means the Securities and Exchange Commission.
"Common Securities" has the meaning specified in Section
7.01(b).
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Annex I to Exhibit C.
"ConocoPhillips" or "Sponsor" means ConocoPhillips, a Delaware
corporation, or any successor entity resulting from any merger, consolidation,
amalgamation or other business combination, in its capacity as sponsor of the
Trust.
["Conversion Agent" has the meaning specified in Section 7.02.]
"Covered Person" means (i) any officer, director, shareholder,
partner, member, representative, employee or agent of the Trust or of any of its
Affiliates, (ii) any officer, director, shareholder, employee, representative or
agent of ConocoPhillips or of any of its Affiliates and (iii) any Holder from
time to time of the Securities.
"Creditor" has the meaning specified in Section 4.02(c).
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder and thereafter means such successor trustee.
"Debentures" means the series of [convertible] unsecured
[senior] [junior] [subordinated] debentures issued to the Property Trustee by
the Sponsor under the Indenture and entitled the "___% [Convertible] [Senior]
[Junior] [Subordinated] Debentures due ____."
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.04.
"Delaware Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.01(a)(3).
"Depositary Agreement" means the agreement among the Trust,
the Property Trustee and DTC dated as of the Closing Date, as the same may be
amended or supplemented from time to time.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.01.
3
"Dollar" or "$" has the meaning set forth in the Indenture.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Event of Default" in respect of the Securities means that an
Indenture Event of Default has occurred and is continuing with respect to the
Debentures.
"Exchange" has the meaning specified in Section 3.13.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiscal Year" has the meaning specified in Section 11.01.
"Foreign Person" means any Person that is not a United States
Person.
"Global Certificate" has the meaning set forth in Section
9.04.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Statutory Trust Act.
"Holder Direct Action" has the meaning specified in Section
3.10(e).
"Indemnified Person" means any Trustee, any Affiliate of any
Trustee, [any Conversion Agent,] any Paying Agent, any officer, director,
shareholder, member, partner, employee, representative or agent of any Trustee[,
Conversion Agent] or Paying Agent, or any employee or agent of the Trust or of
any of its Affiliates, including but not limited to any officer or director of
the Sponsor.
"Indenture" means the Indenture, dated as of _____________,
____, between ConocoPhillips and the Debenture Trustee, as supplemented by the
Supplemental Indenture.
"Indenture Event of Default" means that an event or condition
defined as an "Event of Default" with respect to the Debentures under Section
6.01 of the Indenture [or Section ___ of the Supplemental Indenture] has
occurred and is continuing.
"Investment Company" means an "investment company" as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
"Legal Action" has the meaning specified in Section 3.08(g).
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York or Houston, Texas
are authorized or obligated by law, regulation or executive order to remain
closed.
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"Liquidation Distribution" has the meaning set forth in
Exhibits B and C hereto establishing the terms of the Securities.
"List of Holders" has the meaning specified in Section
2.02(a).
"Majority in liquidation amount of the Securities" means,
except as provided in the penultimate paragraph of Section [6](b) of Exhibit B
hereto, Holder(s) of outstanding Securities voting together as a single class
or, as the context may require, Holder(s) of outstanding Preferred Securities or
Common Securities voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount that would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the voting
percentages are determined) represents more than 50% of the liquidation amount
of all outstanding Securities of such class.
"nationally recognized statistical rating organization" has
the meaning specified for purposes of Rule 436(g)(2) under the Securities Act.
"1933 Act Registration Statement" has the meaning specified in
Section 3.13.
"1934 Act Registration Statement" has the meaning specified in
Section 3.13.
"Officers' Certificate" means a certificate signed by any two
of the Chairman of the Board, the President, any Vice Chairman of the Board, any
Vice President, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant Secretary of the
Sponsor, and delivered to the appropriate Trustee. One of the officers signing
an Officers' Certificate given pursuant to Section 2.04 shall be the principal
executive, financial or accounting officer of the Sponsor. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer making such certificate has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate are based;
(c) a statement that, in the opinion of such officer, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion from legal counsel
that (i) may be counsel for the Trust, the Property Trustee or the Sponsor, (ii)
may be an employee of the Sponsor but not an employee of the Trust or the
Property Trustee, and (iii) shall be reasonably acceptable to the Property
Trustee. Any Opinion of Counsel pertaining to U.S. federal income
5
tax matters may rely, inter alia, on published rulings or other official
pronouncements of the Internal Revenue Service.
"Original Declaration" has the meaning set forth in the
recitals above.
["Over-allotment Closing Date" means the date determined
pursuant to the Underwriting Agreement for the closing of the Over-allotment
Option.]
["Over-allotment Option" means any over-allotment option
contained in the Underwriting Agreement.]
"Paying Agent" has the meaning specified in Section 3.10(i).
"Payment Amount" has the meaning specified in Section 6.01.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
"Preferred Securities" has the meaning specified in Section
7.01(b).
"Preferred Securities Guarantee" means the Guarantee Agreement,
dated as of ___________, ____, between ConocoPhillips and The Bank of New York,
a New York banking corporation, as initial guarantee trustee thereunder, in
respect of the Preferred Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book-Entry Interest, a Person who is the beneficial owner of such Book-Entry
Interest, as reflected on the books of the applicable Clearing Agency, or on the
books of a Person maintaining an account with such Clearing Agency (directly as
a Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a definitive certificate
in fully registered form representing a Preferred Security substantially in the
form of Annex I to Exhibit B.
"Property Account" has the meaning specified in Section
3.10(c)(i).
"Property Trustee" means the Trustee meeting the eligibility
requirements set forth in Section 5.01(c) and having the duties set forth for
the Property Trustee herein.
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both such Regular Trustees.
"Regular Trustee" means any Trustee other than the Property
Trustee and the Delaware Trustee.
"Resignation Request" has the meaning specified in Section
5.02(c).
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"Responsible Officer" means, when used with respect to the
Property Trustee, any officer within the corporate trust department of the
Property Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Property Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Declaration.
"Rule 3a-7" means Rule 3a-7 under the Investment Company Act or
any successor rule thereunder.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, or any successor legislation.
["Shares" means the common stock, par value $0.01 per share, of
ConocoPhillips, including associated preferred share purchase rights, or any
other class of stock, other securities, cash or other assets into which the
Debentures are then convertible.]
"Special Event" has the meaning set forth in the terms of the
Securities as set forth in Section 4 of Exhibits B and C hereto.
"Statutory Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from time
to time, or any successor legislation.
"Successor Delaware Trustee" has the meaning specified in
Section 5.02(a)(ii).
"Successor Entity" has the meaning specified in Section
3.18(b)(i).
"Successor Property Trustee" has the meaning specified in
Section 5.02(a)(i).
"Successor Securities" has the meaning specified in Section
3.18(b)(i)(B).
"Super Majority" has the meaning specified in Section
2.06(a)(ii).
"Supplemental Indenture" means the _____ Supplemental
Indenture, dated as of ______________, _____, between ConocoPhillips and the
Debenture Trustee, or any officers' certificate or other writing under the
Indenture, in each case establishing the form and terms of the Debentures as
permitted by Section 2.01 of the Indenture.
"10% in liquidation amount of the Securities" means, except as
provided in the penultimate paragraph of Section [6](b) of Exhibit B hereto,
Holder(s) of outstanding Securities voting together as a single class or, as the
context may require, Holder(s) of outstanding Preferred Securities or Common
Securities, voting separately as a class, who are the record owners of a
relevant class of Securities whose liquidation amount (including the stated
amount
7
that would be paid on redemption, liquidation or otherwise, plus accumulated and
unpaid Distributions to the date upon which the voting percentages are
determined) represents 10% or more of the liquidation amount of all outstanding
Securities of such class.
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the recitals above.
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with the
provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended from time to time, or any successor legislation.
"Underwriting Agreement" means the Underwriting Agreement dated
_________________, _____ among the Trust, the Sponsor and the underwriters named
therein.
"United States Person" means a United States person for U.S.
federal income tax purposes.
ARTICLE 2
TRUST INDENTURE ACT
SECTION 2.01 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the Trust
Indenture Act that are required to be part of this Declaration and shall, to the
extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Sections
310 to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The Property Trustee, to the extent permitted by
applicable law and/or the rules and regulations of the Commission, shall be the
only Trustee which is a trustee for the purposes of the Trust Indenture Act.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
8
SECTION 2.02 Lists of Holders of Preferred Securities.
(a) Each of the Sponsor and the Regular Trustees on behalf of
the Trust shall provide the Property Trustee, unless the Property Trustee is
registrar for the Securities, (i) on each regular record date for payment of
Distributions, a list, in such form as the Property Trustee may reasonably
require, of the names and addresses of the Holders ("List of Holders") as of
such record date, and (ii) at any other time, within 30 days of receipt by the
Trust of a written request for a List of Holders, a List of Holders as of a date
no more than 15 days before such List of Holders is given to the Property
Trustee; provided that in each case neither the Sponsor nor the Regular Trustees
on behalf of the Trust shall be obligated to provide such List of Holders at any
time that the List of Holders does not differ from the most recent List of
Holders given to the Property Trustee by the Sponsor and the Regular Trustees on
behalf of the Trust. The Property Trustee shall preserve, in as current a form
as is reasonably practicable, all information contained in the Lists of Holders
given to it or which it receives in the capacity as Paying Agent (if acting in
such capacity); provided that the Property Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Property Trustee shall comply with its obligations
under Sections 310(b), 311 and 312(b) of the Trust Indenture Act.
SECTION 2.03 Reports by the Property Trustee.
Within 60 days after September 15 of each year, commencing
September 15, ____, the Property Trustee shall deliver to the Holders of the
Securities such reports as are required by Section 313 of the Trust Indenture
Act, if any, in the form, in the manner and at the times provided by Section 313
of the Trust Indenture Act. The Property Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act. A copy of each
such report shall, at the time of such transmission to Holders, be filed by the
Property Trustee with the Sponsor, with each Exchange upon which any Preferred
Securities are listed or traded (if so listed or traded) and also with the
Commission. The Sponsor agrees to notify the Property Trustee when any Preferred
Securities become listed or traded on any Exchange and of any delisting thereof.
SECTION 2.04 Periodic Reports to the Property Trustee.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee, the Commission and the Holders of
the Securities, as applicable, such documents, reports and information (if any)
as required by Section 314(a)(1)-(3) of the Trust Indenture Act and the
compliance certificates required by Section 314(a)(4) and (c) of the Trust
Indenture Act, any such certificates to be provided in the form, in the manner
and at the times required by Section 314(a)(4) and (c) of the Trust Indenture
Act; provided that any certificate to be provided pursuant to Section 314(a)(4)
of the Trust Indenture Act shall be provided within 120 days of the end of each
Fiscal Year. Delivery of such reports, information and documents to the Property
Trustee is for informational purposes only and the Property Trustee's receipt
thereof shall not constitute constructive notice of any information contained
therein, including the Sponsor's compliance with any of its covenants hereunder
(as to which the Property Trustee is entitled to
9
rely exclusively on Officers' Certificates or on certificates provided pursuant
to this Section 2.04).
SECTION 2.05 Evidence of Compliance with Conditions Precedent.
Each of the Sponsor and the Regular Trustees on behalf of the
Trust shall provide to the Property Trustee such evidence of compliance with any
conditions precedent provided for in this Declaration which relate to any of the
matters set forth in Section 314(c) of the Trust Indenture Act. Any certificate
or opinion required to be given by an officer pursuant to Section 314(c) may be
given in the form of an Officers' Certificate.
SECTION 2.06 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences; provided that, if the underlying
Indenture Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Declaration shall also not be waivable; or
(ii) requires the consent or vote of the holders of greater
than a majority in aggregate principal amount of the Debentures (a
"Super Majority") to be waived under the Indenture, the Event of
Default under this Declaration may only be waived by the vote of the
Holders of at least the proportion in aggregate liquidation amount of
the Preferred Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding.
The foregoing provisions of this Section 2.06(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of the
Common Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences; provided that, if the underlying Indenture
Event of Default:
10
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under this Declaration as provided above in Section 2.06(a)
or below in this Section 2.06(b), the Event of Default under this
Declaration shall also not be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Declaration as provided
above in Section 2.06(a) or below in this Section 2.06(b), the Event of
Default under this Declaration may be waived only by the vote of the
Holders of at least the proportion in aggregate liquidation amount of
the Common Securities that the relevant Super Majority represents of
the aggregate principal amount of the Debentures outstanding;
provided, further, that the Holders of Common Securities will be deemed to have
waived any such Event of Default and all Events of Defaults with respect to the
Common Securities and their consequences until all Events of Default with
respect to the Preferred Securities have been cured, waived or otherwise
eliminated, and until such Events of Default have been so cured, waived or
otherwise eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. The foregoing provisions of this
Section 2.06(b) shall be in lieu of Sections 316(a)(1)(A) and 316(a)(1)(B) of
the Trust Indenture Act and such Sections 316(a)(1)(A) and 316(a)(1)(B) of the
Trust Indenture Act are hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. In the event that any Event
of Default with respect to the Preferred Securities is waived by the Holders of
Preferred Securities as provided in this Declaration, the Holders of Common
Securities agree that such waiver shall also constitute the waiver of such Event
of Default with respect to the Common Securities for all purposes under this
Declaration without any further act, vote or consent of the Holders of the
Common Securities. Subject to the foregoing provisions of this Section 2.06(b),
upon such waiver, any such default shall cease to exist and any Event of Default
with respect to the Common Securities arising therefrom shall be deemed to have
been cured for every purpose of this Declaration, but no such waiver shall
extend to any subsequent or other default or Event of Default with respect to
the Common Securities or impair any right consequent thereon.
(c) A waiver of an Indenture Event of Default by the Property
Trustee, at the direction of the Holders of Preferred Securities, constitutes a
waiver of the corresponding Event of Default under this Declaration. The
foregoing provisions of this Section 2.06(c) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act.
SECTION 2.07 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders of the Securities in accordance with Section 312 of the Trust
Indenture Act, regardless of the source from which such information was derived,
shall not be deemed to be a violation of any existing law, or
11
any law hereafter enacted which does not specifically refer to Section 312 of
the Trust Indenture Act, nor shall the Property Trustee be held accountable by
reason of mailing any material pursuant to a request made under Section 312(b)
of the Trust Indenture Act.
ARTICLE 3
ORGANIZATION
SECTION 3.01 Name.
The Trust continued by this Declaration is named
"ConocoPhillips Trust [I] [II]" as such name may be modified from time to time
by the Regular Trustees following written notice to the Holders of the
Securities. The Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Regular Trustees.
SECTION 3.02 Office.
The address of the principal office of the Trust is c/o
ConocoPhillips, 600 North Dairy Ashford, Houston, Texas 77079. Upon ten days'
written notice to the Holders, the Regular Trustees may change the location of
the Trust's principal office.
SECTION 3.03 Issuance of the Securities.
On ______________, _____, the Sponsor, on behalf of the Trust
and pursuant to the Original Declaration, executed and delivered the
Underwriting Agreement. On the Closing Date and contemporaneously with the
execution and delivery of this Declaration, the Regular Trustees, on behalf of
the Trust, shall execute and deliver (i) one or more Global Certificates,
registered in the name of the nominee of the initial Clearing Agency as
specified in Section 9.04 for the benefit of the underwriters named in the
Underwriting Agreement, in an aggregate amount of ____________ Preferred
Securities having an aggregate liquidation amount of $____________, against
receipt of the aggregate purchase price of such Preferred Securities of
$____________, and (ii) to the Sponsor, one or more Common Security
Certificates, registered in the name of the Sponsor, in an aggregate amount of
_________ Common Securities having an aggregate liquidation amount of
$___________, against receipt of the aggregate purchase price of such Common
Securities of $____________.
[In the event of the exercise of the Over-allotment Option, on
the Over-allotment Closing Date, the Regular Trustees, on behalf of the Trust,
shall execute and deliver (i) one or more Global Certificates, registered in the
name of the nominee of the initial Clearing Agency as specified in Section 9.04
for the benefit of the underwriters named in the Underwriting Agreement, in an
aggregate amount not to exceed _____ Preferred Securities having an aggregate
liquidation amount of not in the excess of $_________, against receipt of the
aggregate purchase price of such Preferred Securities pursuant to the
Underwriting Agreement, and (ii) to the Sponsor, one or more Common Security
Certificates, registered in the name of the Sponsor, in an aggregate amount not
to exceed _____ Common Securities having an aggregate liquidation amount of not
in excess of $________, against receipt of the aggregate purchase price of such
Common Securities pursuant to the Underwriting Agreement.]
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SECTION 3.04 Purchase of Debentures.
On the Closing Date and contemporaneously with the execution
and delivery of this Declaration, the Regular Trustees, on behalf of the Trust,
shall purchase from the Sponsor with the proceeds received by the Trust from the
sale of the Securities on such date pursuant to Section 3.03, at a purchase
price of 100% of the principal amount thereof, Debentures, registered in the
name of the Property Trustee and having an aggregate principal amount equal to
$___________, and, in satisfaction of the purchase price for such Debentures,
the Property Trustee, on behalf of the Trust, shall deliver or cause to be
delivered to the Sponsor the sum of $___________.
[In the event of the exercise of the Over-allotment Option, on
the Over-allotment Closing Date, the Regular Trustees, on behalf of the Trust,
shall purchase from the Sponsor with the proceeds received by the Trust from the
sale of Securities on such date pursuant to Section 3.03, at a purchase price of
100% of the principal amount thereof, Debentures, registered in the name of the
Property Trustee and having an aggregate principal amount not in excess of
$________, in satisfaction of the purchase price for such Debentures, the
Property Trustee, on behalf of the Trust, shall deliver or cause to be delivered
to the Sponsor an amount equal to the aggregate principal amount of the
Debentures being purchased, plus accrued interest to the date of purchase.]
SECTION 3.05 Purpose.
The exclusive purposes and functions of the Trust are: (a)(i)
to issue and sell Preferred Securities for cash and use the proceeds of such
sales to acquire from the Sponsor, and hold and dispose of, in accordance with
this Declaration, Debentures issued under the Indenture having an aggregate
principal amount equal to the aggregate liquidation amount of the Preferred
Securities so issued and sold; (ii) to enter into such agreements and
arrangements as may be necessary in connection with the sale of Preferred
Securities to the initial purchasers thereof (including the Underwriting
Agreement) and to take all action, and exercise such discretion, as may be
necessary or desirable in connection therewith and to file such registration
statements or make such other filings under the Securities Act, the Exchange Act
or state securities or "Blue Sky" laws as may be necessary or desirable in
connection therewith and with the issuance of the Preferred Securities; and
(iii) to issue and sell Common Securities to the Sponsor for cash and use the
proceeds of such sale to purchase from the Sponsor, and hold and dispose of, in
accordance with this Declaration, Debentures issued under the Indenture having
an aggregate principal amount equal to the aggregate liquidation amount of the
Common Securities so issued and sold; and (b) except as otherwise limited
herein, to engage in only those other activities necessary or incidental
thereto, including such other activities specifically authorized in this
Declaration. The Trust shall not borrow money, issue debt or reinvest proceeds
derived from investments, mortgage or pledge any of its assets or at any time
while the Securities are outstanding otherwise undertake (or permit to be
undertaken) any activity that would result in or cause the Trust not to be
classified for U.S. federal income tax purposes as a grantor trust.
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SECTION 3.06 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee and the Sponsor, the Regular
Trustees shall have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Regular Trustees in accordance with their
powers shall constitute the act of and serve to bind the Trust and an action
taken by the Property Trustee on behalf of the Trust in accordance with its
powers shall constitute the act of and serve to bind the Trust. In dealing with
the Trustees acting on behalf of the Trust, no Person shall be required to
inquire into the authority of the Trustees to bind the Trust. Persons dealing
with the Trust are entitled to rely conclusively on the power and authority of
the Trustees as set forth in this Declaration.
SECTION 3.07 Title to Property of the Trust.
Except as provided in Section 3.10 with respect to the
Debentures and the Property Account or unless otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have undivided beneficial interests in the assets of the Trust.
SECTION 3.08 Powers and Duties of the Regular Trustees.
Each Regular Trustee shall be a United States Person. The
Regular Trustees shall have the exclusive power, authority and duty to cause the
Trust, and shall cause the Trust, to engage in the following activities:
(a) to issue Preferred Securities and Common Securities, in
each case in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and
no more than one series of Common Securities; provided further, that
there shall be no interests in the Trust other than the Securities and
the issuance of Securities shall be limited to one-time, simultaneous
issuances of both Preferred Securities and Common Securities on the
Closing Date[, subject to the issuance of additional Preferred
Securities and Common Securities pursuant to the exercise of any
Over-allotment Option];
(b) in connection with the issuance of the Preferred
Securities, at the direction of the Sponsor, to effect or cause to be
effected the filings, and to execute or cause to be executed, the
documents, set forth in Section 3.13 and, if directed by the Sponsor,
to execute, deliver and perform the Depositary Agreement on behalf of
the Trust;
(c) to acquire as trust assets Debentures with the proceeds of
the sale of the Preferred Securities and the Common Securities;
provided, however, that the Regular Trustees shall cause legal title to
all of the Debentures to be vested in, and the Debentures to be held of
record in the name of, the Property Trustee for the benefit of the
Holders of the Preferred Securities and the Common Securities;
(d) if and to the extent that the Sponsor on behalf of the
Trust has not already done so, at the direction of the Sponsor, to
cause the Trust to enter into the Underwriting
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Agreement and such other agreements and arrangements as may be
necessary or desirable in connection with the sale of the Preferred
Securities to the initial purchasers thereof and the consummation
thereof, and to take all action, and exercise all discretion, as may be
necessary or desirable in connection with the consummation thereof;
(e) to give the Sponsor and the Property Trustee prompt
written notice of the occurrence of a Special Event;
(f) to establish a record date with respect to all actions to
be taken hereunder that require a record date be established, including
for the purposes of Section 316(c) of the Trust Indenture Act and with
respect to Distributions, voting rights, redemptions and exchanges, and
to issue relevant notices to Holders of the Preferred Securities and
Common Securities as to such actions and applicable record dates;
(g) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section 3.10,
the Property Trustee has the exclusive power to bring such Legal
Action;
(h) to employ or otherwise engage employees and agents (who
may be designated as officers with titles) and managers, contractors,
advisors and consultants and pay reasonable compensation for such
services; provided that any Person so employed or engaged is a United
States Person;
(i) to cause the Trust to comply with the Trust's obligations
under the Trust Indenture Act;
(j) to give the certificate to the Property Trustee required
by Section 314(a)(4) of the Trust Indenture Act, which certificate may
be executed by any Regular Trustee;
(k) to incur expenses which are necessary or incidental to
carrying out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as, registrar
and transfer agent for the Securities, the Regular Trustees hereby
initially appointing the Property Trustee for such purposes;
(m) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the
Securities set forth in Exhibits B and C hereto;
(n) to take all actions which may be necessary or appropriate
for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory trust under
the laws of the State of Delaware and of each other jurisdiction in
which such existence is necessary to protect the limited liability of
the Holders of the Securities or to enable the Trust to effect the
purposes for which the Trust has been created;
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(o) to take all actions, not inconsistent with this
Declaration, the Certificate of Trust or applicable law, which the
Regular Trustees determine in their discretion to be necessary or
desirable in carrying out the purposes of the Trust and the activities
of the Trust as set out in this Section 3.08, including, but not
limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for U.S.
federal income tax purposes as a grantor trust; and
(iii) cooperating with the Sponsor to ensure that the
Debentures will be treated as indebtedness of the Sponsor for
U.S. federal income tax purposes;
(p) to take all actions necessary to cause all applicable tax
returns and tax information reports and forms that are required to be
filed with respect to the Trust to be duly prepared and filed by the
Regular Trustees, on behalf of the Trust, and to comply with any
applicable requirements imposed by any taxing authority on holders of
instruments treated as indebtedness for U.S. federal income tax
purposes;
(q) subject to the requirements of Rule 3a-7 (if the Trust is
excluded from the definition of an Investment Company solely by reason
of Rule 3a-7) and Section 317(b) of the Trust Indenture Act, to
appoint, in conjunction with the Property Trustee, one or more Paying
Agents in addition to the Property Trustee; and
(r) to execute all documents or instruments, perform all
duties and powers and do all things for and on behalf of the Trust in
all matters necessary or incidental to the foregoing.
The Regular Trustees must exercise the powers set forth in this
Section 3.08 in a manner which is consistent with the purposes and functions of
the Trust set out in Section 3.05, and the Regular Trustees shall not take any
action which is inconsistent with the purposes and functions of the Trust set
forth in Section 3.05.
Except as provided in this Section 3.08, the Regular Trustees
shall have none of the powers or any of the authority of the Property Trustee
set forth in Section 3.10.
The Regular Trustees shall take all actions on behalf of the
Trust that are not specifically required by this Declaration to be taken by any
other Trustee.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.08 shall be reimbursed by the Sponsor.
SECTION 3.09 Prohibition of Actions by the Trust and the Trustees.
The Trust shall not, and the Trustees (including the Property
Trustee) shall cause the Trust not to, engage in any activity other than in
connection with the purposes of the Trust or
16
other than as required or authorized by this Declaration. In particular, the
Trust shall not and the Trustees (including the Property Trustee) shall not
cause the Trust to:
(a) invest any proceeds received by the Trust as a result of
holding the Debentures but the Trust shall promptly distribute from the
Property Account all such proceeds to Holders of Securities pursuant to
the terms of this Declaration and of the Securities;
(b) acquire any assets other than as expressly provided
herein;
(c) possess Trust property for other than a Trust purpose;
(d) make any loans, other than loans represented by the
Debentures;
(e) possess any power or otherwise act in such a way as to
vary the Trust assets or the terms of the Securities in any way
whatsoever, except as otherwise expressly provided herein;
(f) issue any securities or other evidences of beneficial
ownership of, or beneficial interests in, the Trust other than the
Securities;
(g) incur any indebtedness for borrowed money;
(h) (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee or
exercising any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (ii) waive any past default that is waivable
under Section 6.04 of the Indenture, or (iii) exercise any right to
rescind or annul a declaration of acceleration of the maturity of the
principal of the Debentures, without, in each case, obtaining the prior
approval of the Holders of a Majority in liquidation amount of all
outstanding Securities;
(i) revoke any action previously authorized or approved by a
vote of the Holders of Preferred Securities except by subsequent vote
of such Holders;
(j) consent to any amendment, modification or termination of
the Indenture or the Debentures, where such consent shall be required,
unless in the case of this clause (j) the Property Trustee shall have
received an Opinion of Counsel experienced in such matters to the
effect that such amendment, modification or termination will not cause
more than an insubstantial risk that for U.S. federal income tax
purposes the Trust will not be classified as a grantor trust;
(k) take or consent to any action that would result in the
placement of a lien, pledge, charge, mortgage or other encumbrance on
any of the Trust property;
(l) vary the investment (within the meaning of Treasury
Regulation Section 301.7701-4(c)) of the Trust or of the Holders of
Securities; or
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(m) after the date hereof, enter into any contract or
agreement (other than any depositary agreement or any agreement with
any Exchange) that does not expressly provide that the Holders of
Preferred Securities, in their capacities as such, have limited
liability (in accordance with the provisions of the Statutory Trust
Act) for the liabilities and obligations of the Trust, which express
provision shall be in substantially the following form:
The Holders of the Preferred Securities, in their capacities
as such, shall not be personally liable for any liabilities or
obligations of the Trust arising out of this Agreement, and
the parties hereto hereby agree that the Holders of the
Preferred Securities, in their capacities as such, shall be
entitled to the same limitation of personal liability extended
to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware.
The failure of the Trust to include such a provision shall not in and
of itself cause the Trust's executing, delivering and performing such
contract or agreement to be ultra vires.
SECTION 3.10 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by and
held of record in the name of the Property Trustee in trust for the benefit of
the Holders of the Securities. The right, title and interest of the Property
Trustee to the Debentures shall vest automatically in each Person who may
hereafter be appointed as Property Trustee in accordance with Article 5. Such
vesting and cessation of title shall be effective whether or not conveyancing
documents with regard to the Debentures have been executed and delivered.
(b) The Property Trustee shall not transfer its right, title
and interest in the Debentures to the Regular Trustees or, if the Property
Trustee does not also act as the Delaware Trustee, the Delaware Trustee.
(c) The Property Trustee shall:
(i) establish and maintain a segregated non-interest bearing
trust bank account (the "Property Account") in the name of and under
the exclusive control of the Property Trustee on behalf of the Holders
of the Securities and, on the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit such
funds into the Property Account and, without any further acts of the
Property Trustee or the Regular Trustees, promptly make payments to the
Holders of the Preferred Securities and Common Securities from the
Property Account in accordance with Section 6.01. Funds in the Property
Account shall be held uninvested, and without liability for interest
thereon, until disbursed in accordance with this Declaration. The
Property Account shall be an account which is maintained with a banking
institution whose long term unsecured indebtedness is rated by a
nationally recognized statistical rating organization at least
investment grade;
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(ii) engage in such ministerial activities as shall be
necessary or appropriate to effect promptly the redemption of the
Preferred Securities and the Common Securities to the extent the
Debentures are redeemed or mature;
(iii) upon notice of distribution issued by the Regular
Trustees in accordance with the terms of the Preferred Securities and
the Common Securities, engage in such ministerial activities as shall
be necessary or appropriate to effect promptly pursuant to terms of the
Securities the distribution of Debentures to Holders of Securities upon
the election of the Holder of Common Securities to distribute the
Debentures to Holders of Securities and dissolve the Trust;
(iv) have the legal power to exercise all of the rights,
powers and privileges of a holder of the Debentures under the Indenture
and, if an Event of Default occurs and is continuing, the Property
Trustee, subject to Section 3.10(e), shall for the benefit of the
Holders of the Securities, enforce its rights as holder of the
Debentures under the Indenture, subject to the rights of the Holders of
the Preferred Securities pursuant to the terms of this Declaration, the
Statutory Trust Act and the Trust Indenture Act; and
(v) be a United States Person.
(d) The Property Trustee shall take all actions and perform
such duties as may be specifically required of the Property Trustee pursuant to
the terms of the Securities set forth in Exhibits B and C hereto.
(e) If an Event of Default has occurred and is continuing,
then the Holders of a Majority in liquidation amount of the Preferred Securities
will have, subject to Section 3.12(c)(iv), the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Property
Trustee or to direct the exercise of any trust or power conferred upon the
Property Trustee under this Declaration, including the right to direct the
Property Trustee to exercise the remedies available to it as a holder of the
Debentures. If the Property Trustee fails to enforce its rights under the
Debentures, a Holder of Preferred Securities may, to the fullest extent
permitted by law, after a period of 30 days has elapsed since such Holder's
written request to the Property Trustee to enforce such rights, institute a
legal proceeding directly against the Sponsor to enforce the Property Trustee's
rights under the Debentures without first instituting any legal proceeding
against the Property Trustee or any other Person; provided that, if an Event of
Default has occurred and is continuing and such event is attributed to the
failure of the Sponsor to pay the principal of, or any premium or interest on,
the Debentures on the date such amounts are otherwise payable (or in the case of
redemption, on the redemption date), then a Holder of Preferred Securities may
directly institute a proceeding for enforcement of payment to such Holder of
such amounts on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Holder Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Holder Direct Action, the Sponsor will be subrogated to the
rights of such Holder of Preferred Securities to the extent of any payment made
by the Sponsor to such Holders of Preferred Securities in such Holder Direct
Action. Except as provided in the preceding sentences, the
19
Holders of Preferred Securities will not be able to exercise directly any other
remedy available to the Holders of the Debentures.
(f) All moneys deposited in the Property Account and all
Debentures held by the Property Trustee for the benefit of the Holders of the
Securities will not be subject to any right, charge, security interest, lien or
claim of any kind in favor of, or for the benefit of, the Property Trustee or
its agents or their creditors.
(g) The Property Trustee shall, within 90 days after the
occurrence of a default with respect to the Securities actually known to a
Responsible Officer of the Property Trustee, transmit by mail, first class
postage prepaid, to the holders of the Securities, as their names and addresses
appear upon the register, notice of such default with respect to the Securities
known to the Property Trustee, unless such default shall have been cured before
the giving of such notice (the term "default" for the purposes of this Section
3.10(g) being hereby defined to be an Indenture Event of Default, not including
any periods of grace provided in the Indenture and irrespective of the giving of
any notice provided therein); provided that, except in the case of default in
the payment of the principal of, or any premium or interest on, any of the
Debentures, the Property Trustee shall be protected in withholding such notice
if and so long as a committee of Responsible Officers of the Property Trustee in
good faith determines that the withholding of such notice is in the interests of
the Holders of the Securities. The Property Trustee shall not be deemed to have
knowledge of any default, except (i) a default in the payment of principal of,
or any premium or interest on, the Debentures or (ii) any default as to which
the Property Trustee shall have received written notice or a Responsible Officer
charged with the administration of this Declaration shall have obtained written
notice of such default.
(h) The Property Trustee shall continue to serve as a Trustee
until either:
(i) the Trust has been completely liquidated and the proceeds
thereof distributed to the Holders of Securities pursuant to the terms
of the Securities; or
(ii) a Successor Property Trustee has been appointed and
accepted that appointment in accordance with Article 5.
(i) The Property Trustee shall act as paying agent in respect
of the Common Securities and, if the Preferred Securities are not in book-entry
only form, the Preferred Securities and, subject to Section 3.08(q), may
authorize one or more Persons (each, a "Paying Agent") to pay Distributions,
redemption payments or liquidation payments on behalf of the Trust with respect
to the Preferred Securities. Any such Paying Agent shall comply with Section
317(b) of the Trust Indenture Act. Any Paying Agent may be removed by the
Property Trustee, after consultation with the Regular Trustees, at any time and
a successor Paying Agent or additional Paying Agents may be appointed at any
time by the Property Trustee, subject to Section 3.08(q).
(j) The Property Trustee shall give prompt written notice to
the Holders of the Securities of any notice received by it from ConocoPhillips
of its election to defer payments of interest on the Debentures by extending the
interest payment period with respect thereto.
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(k) Except as provided in this Section 3.10, the Property
Trustee shall have none of the powers or the authority of the Regular Trustees
set forth in Section 3.08.
(l) The Property Trustee shall exercise the powers, duties and
rights set forth in this Section 3.10 and in Section 3.12 in a manner which is
consistent with the purposes and functions of the Trust set out in Section 3.05,
and the Property Trustee shall not take any action which is inconsistent with
the purposes and functions of the Trust set forth in Section 3.05.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration, the
Delaware Trustee shall not be entitled to exercise any powers, nor shall the
Delaware Trustee have any of the duties and responsibilities of the Regular
Trustees or the Property Trustee described in this Declaration. The Delaware
Trustee shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807(a) of the Statutory Trust Act. No implied covenants
or obligations shall be read into this Declaration against the Delaware Trustee.
SECTION 3.12 Certain Rights and Duties of the Property Trustee.
(a) The Property Trustee, before the occurrence of an Event of
Default and after the curing or waiving of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration, and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.06), the
Property Trustee shall exercise such of the rights and powers vested in it by
this Declaration, and use the same degree of care and skill in its exercise
thereof, as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) No provision of this Declaration shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Property
Trustee shall be determined solely by the express provisions
of this Declaration, and the Property Trustee shall not be
liable except for the performance of such duties and
obligations as are specifically set forth in this Declaration,
and no implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part of the
Property Trustee, the Property Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Property Trustee and conforming to the
requirements of this Declaration; provided, however, that in
the case of any such certificates or
21
opinions that by any provision hereof or the Trust Indenture
Act are specifically required to be furnished to the Property
Trustee, the Property Trustee shall be under a duty to examine
the same to determine whether or not they conform to the
requirements of this Declaration or the Trust Indenture Act,
as the case may be;
(ii) the Property Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was based;
(iii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
liquidation amount of the Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Property Trustee hereunder or under the Indenture, or exercising any
trust or power conferred upon the Property Trustee under this
Declaration; and
(iv) no provision of this Declaration shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Declaration or adequate indemnity against such risk or liability is not
reasonably assured to it.
(c) Subject to the provisions of Section 3.12(a) and (b):
(i) whenever in the administration of this Declaration, the
Property Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, the Property Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of negligence or bad faith
on its part and, if the Trust is excluded from the definition of
Investment Company solely by means of Rule 3a-7, subject to the
requirements of Rule 3a-7, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Sponsor or the Regular Trustees; and such
Officers' Certificate, in the absence of negligence or bad faith on the
part of the Property Trustee, shall be full warrant to the Property
Trustee for any action taken, suffered or omitted under the provisions
of this Declaration upon the faith thereof;
(ii) the Property Trustee (A) may consult with counsel (which
may be counsel to the Sponsor or any of its Affiliates and may include
any of its employees) selected by it in good faith and with due care
and the advice or opinion of such counsel with respect to legal matters
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 and in accordance with such advice and opinion and
(B) shall have the right at any time to seek instructions concerning
the administration of this Declaration from any court of competent
jurisdiction;
22
(iii) the Property Trustee may exercise any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys; provided that any such action (other
than any ministerial action) executed or performed by such an agent or
attorney is executed or performed by an agent or attorney that is a
United States Person, and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it in good faith and with due care;
(iv) the Property Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Declaration
at the request or direction of any Holder, unless such Holder shall
have offered to the Property Trustee security and indemnity
satisfactory to the Property Trustee against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction; provided
that nothing contained in this clause (iv) shall relieve the Property
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the rights and
powers vested in it by this Declaration, and to use the same degree of
care and skill in this exercise, as a prudent person would exercise or
use under the circumstances in the conduct of such person's own
affairs;
(v) any action taken by the Property Trustee or its agents
hereunder shall bind the Holders of the Securities, and the signature
of the Property Trustee or its agents alone shall be sufficient and
effective to perform any such action; and no third party shall be
required to inquire as to the authority of the Property Trustee to so
act, or as to its compliance with any of the terms and provisions of
this Declaration, both of which shall be conclusively evidenced by the
Property Trustee's or its agent's taking such action; and
(vi) whenever in the administration of this Declaration the
Property Trustee shall deem it necessary or desirable to receive
instructions with respect to enforcing any remedy or right or taking
any other action hereunder, the Property Trustee (A) may request
instructions from the Holders of the Securities, which instructions may
be given only by the Holders of the same proportion in liquidation
amount of the Securities as would be entitled to direct the Property
Trustee under this Declaration in respect of such remedy, right or
action, (B) may refrain from enforcing such remedy or right or taking
such other action until such instructions are received and (C) shall be
protected in conclusively relying on or acting in accordance with such
instructions.
(d) The Property Trustee, in its individual or any other
capacity, may become the owner or pledgee of Preferred Securities and, subject
to the provisions of Section 5.01(c) (in the case of the Property Trustee), may
otherwise deal with the Sponsor with the same rights it would have if it were
not the Property Trustee.
(e) Except as required by Section 3.10(c) hereof, all moneys
received by the Property Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent
23
required by law. The Property Trustee shall be under no liability for interest
on any moneys received by it hereunder except such as it may agree in writing to
pay thereon.
(f) The Sponsor covenants and agrees to pay to the Property
Trustee from time to time, and the Property Trustee shall be entitled to, such
compensation as the Sponsor and the Property Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard
to the compensation of a Property Trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Property
Trustee, and the Sponsor will pay or reimburse the Property Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Property Trustee in accordance with any of the provisions of this
Declaration (including the reasonable compensation and the reasonable expenses
and disbursements of its counsel and of all persons not regularly in its employ)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Sponsor also covenants to indemnify each of the
Property Trustee or any predecessor Property Trustee and their officers, agents,
directors and employees for, and to hold them harmless against, any and all
loss, liability, damage, claim or expense, including taxes (other than taxes
based upon, measured by or determined by the income, profit or franchise of or
doing business by the Property Trustee), incurred without negligence or bad
faith on the part of the Property Trustee and arising out of or in connection
with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim (whether asserted by
the Sponsor, any Holder or any other Person) of liability in the premises. The
provisions of this Section 3.12(f) shall survive the termination of this
Declaration and resignation or removal of the Property Trustee. The obligations
of the Sponsor under this Section 3.12(f) to compensate and indemnify the
Property Trustee and to pay or reimburse the Property Trustee for expenses,
disbursements and advances shall constitute additional indebtedness of the
Sponsor.
(g) Whether or not expressly stated, every provision of this
Declaration pertaining to the Property Trustee shall be subject to this Section
3.12.
SECTION 3.13 Registration Statement and Related Matters.
The Sponsor, as the sponsor of the Trust, was and is
authorized (i) to prepare and file with the Commission and execute, in each case
on behalf of the Trust, (a) the Registration Statement on Form S-3 (Registration
Nos. 333-______, 333-______-01, 333-______-02, 333-______-03, 333-______-04 and
333-______-05) (the "1933 Act Registration Statement"), including any
pre-effective or post-effective amendments to such Registration Statement
(including any preliminary prospectus, prospectus or prospectus supplement, and
the exhibits thereto), relating to the registration under the Securities Act of
the Preferred Securities and certain other securities of the Sponsor and (b) if
the Sponsor shall deem it desirable, a Registration Statement on Form 8-A (the
"1934 Act Registration Statement"), including all pre-effective and
post-effective amendments thereto, relating to the registration of the Preferred
Securities under Section 12 of the Exchange Act; (ii) if the Sponsor shall deem
it desirable, to prepare and file with the New York Stock Exchange, Inc. or any
other automated quotation system, exchange or over-the-counter market (each, an
"Exchange") and execute on behalf of the Trust a listing application or
applications and all other applications, statements, certificates,
24
agreements and other instruments as shall be necessary, appropriate or desirable
to cause the Preferred Securities to be listed on any Exchange; (iii) to prepare
and file and execute on behalf of the Trust such applications, reports, surety
bonds, irrevocable consents, appointments of attorney for service of process and
other papers and documents as the Sponsor, on behalf of the Trust, may deem
necessary, appropriate or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws of such jurisdictions as the Sponsor, on
behalf of the Trust, may deem necessary, appropriate or desirable; (iv) to
negotiate the terms of and execute, or to cause the Regular Trustees to execute,
on behalf of the Trust the Underwriting Agreement; and (v) to execute and
deliver, or to cause the Regular Trustees to execute and deliver, on behalf of
the Trust letters or documents to, or instruments for filing with, the Clearing
Agency relating to the Preferred Securities, including the Depositary Agreement.
In the event that any filing referred to in clauses (i)-(iii) above is required
by the rules and regulations of the Commission, any Exchange, the National
Association of Securities Dealers, Inc. or any state or foreign securities or
blue sky laws, to be executed on behalf of the Trust by the Trustees, the
Regular Trustees, in their capacities as Trustees of the Trust, and the Sponsor
are hereby authorized to join in any such filing and to execute on behalf of the
Trust any and all of the foregoing. In connection with all of the foregoing, the
Sponsor and each Regular Trustee, solely in its capacity as Trustee of the
Trust, have constituted and appointed, and hereby confirm the appointment of,
__________, __________ and __________ and each of them, as his, her or its, as
the case may be, true and lawful attorneys-in-fact, and agents, with full power
of substitution and resubstitution, for the Sponsor or such Trustee or in the
Sponsor's or such Trustee's name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Sponsor or such Trustee might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his or her substitute or substitutes, may lawfully do
or cause to be done by virtue hereof. Notwithstanding anything in this Section
3.13 to the contrary, no Foreign Person (acting in its capacity as
attorney-in-fact or agent of any Foreign Person) shall be authorized to take or
perform any action on behalf of the Trust pursuant to this Section 3.13 at any
time on or after the Closing Date.
SECTION 3.14 Filing of Amendments to Certificate of Trust.
The Certificate of Trust as filed with the Secretary of State
of the State of Delaware on November 6, 2002 is attached hereto as Exhibit A. On
or after the date of execution of this Declaration, the Regular Trustees shall
cause the filing with the Secretary of State of the State of Delaware of such
amendments and/or restatements, if any, to the Certificate of Trust as the
Regular Trustees shall deem necessary or desirable.
SECTION 3.15 Execution of Documents by the Regular Trustees.
Except as otherwise required by the Statutory Trust Act with
respect to the Certificate of Trust or otherwise and except as provided in
Sections 7.01(c) and 9.08, any Regular Trustee, or if there is only one, such
Regular Trustee is authorized to execute, deliver
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and file on behalf of the Trust any documents (including amendments and/or
restatements of the Certificate of Trust and the certificate of cancellation
contemplated by Section 8.01) which the Regular Trustees have the power and
authority to execute, deliver or file pursuant to this Declaration.
SECTION 3.16 Trustees Not Responsible for Recitals or Issuance of
Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Sponsor, and the Trustees do not assume
any responsibility for their correctness. The Trustees make no representations
as to the value or condition of the property of the Trust or any part thereof.
The Trustees make no representations as to the validity or sufficiency of this
Declaration or the Securities.
SECTION 3.17 Duration of the Trust.
The Trust, absent dissolution pursuant to the provisions of
Article 8 hereof, shall continue without dissolution until ____________, _____.
SECTION 3.18 Mergers.
(a) The Trust may not merge with or into, convert into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, except as
described in Section 3.18(b) and (c) of this Declaration.
(b) The Trust may, at the request of the Sponsor, with the
consent of the Regular Trustees or, if there are more than two, a majority of
the Regular Trustees and without the consent of the Holders, the Delaware
Trustee or the Property Trustee, as permitted by Delaware law, merge with or
into, convert into, consolidate, amalgamate, or be replaced by, or convey,
transfer or lease its properties and assets as an entirety or substantially as
an entirety to, a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor Entity") either:
(A) expressly assumes all of the obligations of the
Trust under the Securities and this Declaration; or
(B) substitutes for the Securities other securities
having substantially the same terms as the Securities (the
"Successor Securities") so long as the Successor Securities
rank the same as the Securities rank with respect to
Distributions and payments upon liquidation, redemption and
otherwise;
(ii) the Sponsor expressly appoints a trustee of the Successor
Entity that possesses the same powers and duties as the Property
Trustee as the holder of the Debentures;
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(iii) the Successor Securities are listed or traded, or any
Successor Securities will be listed or traded upon notification of
issuance, on any Exchange on which the Preferred Securities are then
listed or traded, if any;
(iv) if the Preferred Securities (including any Successor
Securities) are rated by any nationally recognized statistical rating
organization prior to such transaction, such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or lease
does not cause the Preferred Securities (including any Successor
Securities), or if the Debentures are so rated, the Debentures, to be
downgraded by any nationally recognized statistical rating
organization;
(v) such merger, conversion, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect
the rights, preferences and privileges of the Holders (including the
holders of any Successor Securities) in any material respect (other
than with respect to any dilution of such Holders' interests in the new
entity);
(vi) such Successor Entity has purposes substantially
identical to those of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the Sponsor
has received an Opinion of Counsel experienced in such matters that:
(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of
the Holders (including the holders of any Successor
Securities) in any material respect (other than with respect
to any dilution of the Holders' interest in the new entity);
(B) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
neither the Trust nor the Successor Entity will be required to
register as an Investment Company under the Investment Company
Act; and
(C) following such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease, the
Trust (or the Successor Entity) will continue to be classified
as a grantor trust for U.S. federal income tax purposes;
(viii) the Sponsor or any permitted successor or assignee of
the Sponsor owns all of the common securities of such Successor Entity
and guarantees the obligations of such Successor Entity under the
Successor Securities at least to the extent provided by the Preferred
Securities Guarantee; and
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(ix) there shall have been furnished to the Property Trustee
an Officers' Certificate and an Opinion of Counsel, each to the effect
that all conditions precedent in this Declaration to such transaction
have been satisfied.
(c) Notwithstanding Section 3.18(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, convert into, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other Person or permit any
other Person to consolidate, amalgamate, merge with or into, or replace it if
such consolidation, amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity not to be
classified as a grantor trust for U.S. federal income tax purposes or would
cause the Holders of the Securities not to be treated as owning an undivided
interest in the Debentures.
SECTION 3.19 Property Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other similar judicial proceeding relative to the Trust or any other obligor
upon the Securities or the property of the Trust or of such other obligor or
their creditors, the Property Trustee (irrespective of whether any Distributions
on the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Property Trustee shall
have made any demand on the Trust for the payment of any past due Distributions)
shall be entitled and empowered, to the fullest extent permitted by law, by
intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of any
Distributions owing and unpaid in respect of the Securities (or, if the
Securities are original issue discount Securities, such portion of the
liquidation amount as may be specified in the terms of such Securities)
and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Property Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Property 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;
(c) and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to
the Property Trustee and, in the event the Property Trustee shall
consent to the making of such payments directly to the Holders to pay
to the Property Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Property
Trustee, its agents and counsel, and any other amounts due the Property
Trustee.
Nothing herein contained shall be deemed to authorize the
Property Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization,
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arrangement, adjustment or compensation affecting the Securities or the rights
of any Holder thereof to authorize the Property Trustee to vote in respect of
the claim of any Holder in any such proceeding.
ARTICLE 4
SPONSOR
SECTION 4.01 Purchase of Common Securities by the Sponsor.
On the Closing Date, the Sponsor will purchase all of the
Common Securities issued by the Trust at the same time as the Preferred
Securities to be issued on such date are issued, such purchase to be in an
amount equal to at least 3% of the total capital of the Trust. [In the event of
the exercise of the Over-allotment Option, on the Over-allotment Closing Date,
the Sponsor will purchase all of the Common Securities issued by the Trust at
the same time as the Preferred Securities to be issued on such date are issued,
such purchase to be in an amount equal to at least 3% of the total additional
capital of the Trust.]
SECTION 4.02 Expenses.
(a) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor, shall be responsible for and
shall pay for all debts and obligations (other than with respect to the
Securities) and all current and future costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to the organization
of the Trust, the issuance of the Preferred Securities to initial purchasers
thereof (including any commissions payable to such purchasers), the fees and
expenses (including reasonable counsel fees and expenses) of the Trustees
(including any amounts payable under Article 10), the costs and expenses
relating to the operation of the Trust, including, without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition and disposition of Trust assets).
(b) In connection with the purchase of the Debentures by the
Trust, the Sponsor, in its capacity as Sponsor, shall pay any and all taxes
(other than United States withholding taxes attributable to the Trust or its
assets) of the Trust and all liabilities, costs and expenses of the Trust with
respect to such taxes.
(c) The Sponsor's obligations under this Section 4.02 shall be
for the benefit of, and shall be enforceable by, any Person to whom any such
debts, obligations, costs, expenses and taxes are owed (a "Creditor") whether or
not such Creditor has received notice hereof. Any such Creditor may enforce the
Sponsor's obligations under this Section 4.02 directly against the Sponsor, and
the Sponsor irrevocably waives any right or remedy to require that any such
Creditor take any action against the Trust or any other Person before proceeding
against the Sponsor.
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(d) The Sponsor shall be subrogated to all (if any) rights of
the Trust in respect of any amounts paid to any Creditor by the Sponsor under
this Section 4.02.
SECTION 4.03 Holder of the Common Securities.
Each Holder of the Common Securities shall at all times hold
the Common Securities in its individual capacity on its own behalf and shall
not, in its capacity as Holder of the Common Securities, be under (or subject
to) the control or direction of any Foreign Person (pursuant to a contractual
arrangement or otherwise), other than by virtue of such Foreign Person's direct
or indirect stock ownership, if any, of the Holder of the Common Securities.
Notwithstanding anything in this Declaration to the contrary, each Holder of the
Common Securities shall at all times be a United States Person and shall be
authorized to give any direction hereunder with respect to the Trust as shall be
necessary for the Trust not to be considered a foreign trust for U.S. federal
income tax purposes.
ARTICLE 5
TRUSTEES
SECTION 5.01 Number of Trustees; Qualifications.
(a) The number of Trustees initially shall be five (5).
Subject to Section 5.02(a), at any time and without cause (i) before the
issuance of the Securities, the Sponsor may, by written instrument, increase or
decrease the number of, and appoint, remove and replace, the Trustees, and (ii)
after the issuance of the Securities the number of Trustees may be increased or
decreased solely by, and Trustees may be appointed, removed or replaced solely
by, vote of Holders of Common Securities representing a Majority in liquidation
amount of the Common Securities voting as a class; provided that in any case:
(1) the number of Trustees shall be at least five (5) unless
the Trustee that acts as the Property Trustee also acts as the Delaware
Trustee, in which case the number of Trustees shall be at least four
(4);
(2) at least a majority of the Trustees shall at all times be
officers, directors or employees of the Sponsor;
(3) if required by the Statutory Trust Act, one Trustee (the
"Delaware Trustee") shall be either a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and
otherwise is permitted to act as a Trustee hereunder under the laws of
the State of Delaware, except that if the Property Trustee has its
principal place of business in the State of Delaware and otherwise is
permitted to act as a Trustee hereunder under the laws of the State of
Delaware, then the Property Trustee shall also be the Delaware Trustee
and Section 3.11 shall have no application;
(4) there shall at all times be a Property Trustee hereunder
which shall satisfy the requirements of Section 5.01(c);
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(5) each Trustee shall be a United States Person; and
(6) each Trustee shall at all times act as Trustee in its
individual capacity on its own behalf and will not at any time, in its
capacity as Trustee, be under (or subject to) the control or direction
of any Foreign Person (pursuant to a contractual arrangement or
otherwise).
Each Trustee shall be either a natural person at least 21 years of age or a
legal entity which shall act through one or more duly appointed representatives.
(b) The initial Regular Trustees shall be:
__________, __________ and __________
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
(c) There shall at all times be one Trustee which shall act as
the Property Trustee. In order to act as the Property Trustee hereunder, such
Trustee shall:
(i) not be an Affiliate of the Sponsor;
(ii) be a corporation or national banking association that is
a United States Person organized and doing business under the laws of
the United States of America or any State or Territory thereof or of
the District of Columbia, or a corporation, national banking
association or Person that is a United States Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by U.S. federal, state,
territorial or District of Columbia authority. If such corporation or
national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
Section 5.01(c)(ii), 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; and
(iii) if the Trust is excluded from the definition of an
Investment Company solely by reason of Rule 3a-7 and to the extent Rule
3a-7 requires a trustee having certain qualifications to hold title to
the "eligible assets" (as defined in Rule 3a-7) of the Trust, the
Property Trustee shall possess those qualifications.
If at any time the Property Trustee shall cease to satisfy the
requirements of clauses (i)-(iii) above, the Property Trustee shall immediately
resign in the manner and with the effect set out in Section 5.02(c). If the
Property Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Property Trustee and
the Holders of the Common Securities (as if such Holders were the obligor
referred to in Section 310(b) of the Trust Indenture Act) shall in all respects
comply with the provisions of Section 310(b) of the Trust
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Indenture Act. The Preferred Securities Guarantee and the Indenture shall be
deemed to be specifically described in this Declaration for the purposes of
clause (i) of the first proviso contained in Section 310(b) of the Trust
Indenture Act.
The initial Trustee which shall serve as the Property Trustee
is The Bank of New York, a New York banking corporation, whose address is as set
forth in Section 14.01(b).
(d) The initial Trustee which shall serve as the Delaware
Trustee is The Bank of New York (Delaware), a Delaware banking corporation,
whose address is as set forth in Section 14.01(c).
(e) Any action taken by the Holders of Common Securities
pursuant to this Article 5 shall be taken at a meeting of the Holders of Common
Securities convened for such purpose or by written consent, without a meeting
and without prior notice, as provided in Section 12.02.
(f) No amendment may be made to this Section 5.01 which would
change any rights with respect to the number, existence or appointment and
removal of Trustees, except with the consent of each Holder of Common
Securities.
SECTION 5.02 Appointment, Removal and Resignation of the Trustees.
(a) (i) The Trustee that acts as the Property Trustee shall
not be removed in accordance with Section 5.01(a) until a successor Trustee
possessing the qualifications to act as the Property Trustee under Section
5.01(c) (a "Successor Property Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Property
Trustee and delivered to the Regular Trustees, the Sponsor and the Property
Trustee being removed; and
(ii) the Trustee that acts as the Delaware Trustee shall not
be removed in accordance with Section 5.01(a) until a successor Trustee
possessing the qualifications to act as the Delaware Trustee under Section
5.01(a)(3) (a "Successor Delaware Trustee") has been appointed and has accepted
such appointment by written instrument executed by such Successor Delaware
Trustee and delivered to the Regular Trustees, the Sponsor and the Delaware
Trustee being removed.
(b) A Trustee appointed to office shall hold such office until
his successor shall have been appointed or until his death, removal or
resignation.
(c) Any Trustee may resign from office (without need for prior
or subsequent accounting) by an instrument (a "Resignation Request") in writing
signed by such Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
32
(i) no such resignation of the Trustee that acts as the
Property Trustee shall be effective until:
(A) a Successor Property Trustee has been appointed
and has accepted such appointment by instrument executed by
such Successor Property Trustee and delivered to the Regular
Trustees, the Sponsor and the resigning Property Trustee; or
(B) if the Trust is excluded from the definition of
an Investment Company solely by reason of Rule 3a-7, until the
assets of the Trust have been completely liquidated and the
proceeds thereof distributed to the Holders of the Securities;
and
(ii) no such resignation of the Trustee that acts as the
Delaware Trustee shall be effective until a Successor Delaware Trustee
has been appointed and has accepted such appointment by instrument
executed by such Successor Delaware Trustee and delivered to the
Regular Trustees, the Sponsor and the resigning Delaware Trustee.
(d) If no Successor Property Trustee or Successor Delaware
Trustee shall have been appointed and accepted appointment as provided in
Section 5.01 and this Section 5.02 within 60 days after delivery of a notice of
removal or a Resignation Request, the Property Trustee or Delaware Trustee being
removed or resigning, as the case may be, may, at the Sponsor's expense,
petition any court of competent jurisdiction for appointment of a Successor
Property Trustee or Successor Delaware Trustee, as the case may be. Such court
may thereupon after prescribing such notice, if any, as it may deem proper and
prescribe, appoint a Successor Property Trustee or Successor Delaware Trustee,
as the case may be.
SECTION 5.03 Vacancies among the Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.01 or if the number of
Trustees is increased pursuant to Section 5.01, a vacancy shall occur. A
resolution certifying the existence of such vacancy by a majority of the Regular
Trustees shall be conclusive evidence of the existence of such vacancy. The
vacancy shall be filled with a Trustee appointed in accordance with the
requirements of this Article 5.
SECTION 5.04 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee, or any one of them, shall not operate to dissolve, terminate or annul
the Trust. Whenever a vacancy in the number of Regular Trustees shall occur,
until such vacancy is filled as provided in this Article 5, the Regular Trustees
in office, regardless of their number, shall have all the powers granted to the
Regular Trustees and shall discharge all the duties imposed upon the Regular
Trustees by this Declaration.
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SECTION 5.05 Meetings.
Meetings of the Regular Trustees shall be held from time to
time upon the call of any Regular Trustee. Regular meetings of the Regular
Trustees may be held at a time and place fixed by resolution of the Regular
Trustees. Notice of any in-person meeting of the Regular Trustees shall be hand
delivered or otherwise delivered in writing (including by facsimile, with a hard
copy by overnight courier) not less than 48 hours before such meeting. Notice of
any telephonic meeting of the Regular Trustees or any committee thereof shall be
hand delivered or otherwise delivered in writing (including by facsimile, with a
hard copy by overnight courier) not less than 24 hours before such meeting.
Notices shall contain a brief statement of the time, place and anticipated
purposes of the meeting. The presence (whether in person or by telephone) of a
Regular Trustee at a meeting shall constitute a waiver of notice of such meeting
except where a Regular Trustee attends a meeting for the express purpose of
objecting to the transaction of any activity on the ground that the meeting has
not been lawfully called or convened. Unless otherwise provided in this
Declaration, any action of the Regular Trustees may be taken at a meeting by
vote of a majority of the Regular Trustees present (whether in person or by
telephone) and eligible to vote with respect to such matter, provided that a
Quorum is present, or without a meeting and without prior notice by the
unanimous written consent of the Regular Trustees.
SECTION 5.06 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent
with applicable law, delegate to any other natural person over the age of 21
that is a United States Person his or her power for the purpose of executing any
registration statement or amendment thereto or other document or schedule filed
with the Commission or making any other governmental filing (including, without
limitation, the filings referred to in Section 3.13).
(b) The Regular Trustees shall have power to delegate from
time to time to such of their number or to officers of the Trust the doing of
such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth in this
Declaration.
SECTION 5.07 Merger, Conversion, Consolidation or Succession to
Business.
Any Person into which the Property Trustee or the Delaware
Trustee or any Regular Trustee that is not a natural person, as the case may be,
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Property
Trustee or the Delaware Trustee or the Regular Trustees, as the case may be,
shall be a party, or any Person succeeding to all or substantially all of the
corporate trust business of the Property Trustee or the Delaware Trustee or any
Regular Trustee, as the case may be, shall be the successor of the Property
Trustee or the Delaware Trustee or that Regular Trustee, as the case may be,
hereunder; provided that such Person shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto.
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ARTICLE 6
DISTRIBUTIONS
SECTION 6.01 Distributions.
Holders shall receive periodic distributions, redemption
payments and liquidation distributions and other payments in accordance with the
applicable terms of the relevant Holder's Securities as set forth in Exhibits B
and C hereto ("Distributions"). If and to the extent that ConocoPhillips makes a
payment of principal of or any premium or interest on the Debentures held by the
Property Trustee (the amount of any such payment being a "Payment Amount"), the
Property Trustee shall and is directed, to the extent funds are available for
that purpose, promptly to make a Distribution of the Payment Amount to Holders
in accordance with the terms of the Securities as set forth in Exhibits B and C
hereto. The record dates and payment dates for Distributions shall be the same
as the record dates and payment dates for the Debentures held by the Property
Trustee.
ARTICLE 7
ISSUANCE OF THE SECURITIES
SECTION 7.01 General Provisions Regarding the Securities.
(a) The Regular Trustees shall issue the Securities on behalf
of the Trust in fully registered form representing undivided beneficial
interests in the assets of the Trust in accordance with Section 7.01(b) and for
the consideration specified in Section 3.03.
(b) The Regular Trustees shall issue on behalf of the Trust
(i) one class of preferred securities representing preferred undivided
beneficial interests in the assets of the Trust having such terms as are set
forth in Exhibit B hereto (the "Preferred Securities"), which terms are
incorporated by reference in, and made a part of, this Declaration as if
specifically set forth herein, and (ii) one class of common securities
representing common undivided beneficial interests in the assets of the Trust
having such terms as are set forth in Exhibit C hereto (the "Common
Securities"), which terms are incorporated by reference in, and made a part of,
this Declaration as if specifically set forth herein. The Trust shall have no
securities or other interests in the assets of the Trust other than the
Preferred Securities and the Common Securities.
(c) The Certificates shall be signed on behalf of the Trust by
the Regular Trustees (or if there are more than two Regular Trustees by any two
of the Regular Trustees). Such signatures may be the manual or facsimile
signatures of the present or any future Regular Trustee. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity of any Certificate. In case any Regular Trustee who shall
have signed any of the Certificates shall cease to be such Regular Trustee
before the Certificate so signed shall be delivered by the Trust, such
Certificate nevertheless may be delivered as though the person who signed such
Certificate had not ceased to be such Regular Trustee; and any Certificate may
be signed on behalf of the Trust by such persons as, at the actual date of the
execution of such Certificate, shall be the Regular Trustees, although at the
date of the execution and delivery of this Declaration any such person was not a
Regular Trustee. Certificates shall be typewritten, printed, lithographed or
engraved or may be produced in any other manner as is
35
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
Exchange on which Securities may be listed or traded, or with any rule or
regulation of the Clearing Agency, or to conform to usage. Pending the
preparation of definitive Certificates, the Regular Trustees on behalf of the
Trust may execute temporary Certificates (printed, lithographed or typewritten),
in substantially the form of the definitive Certificates in lieu of which they
are issued, but with such omissions, insertions and variations as may be
appropriate for temporary Certificates, all as may be determined by the Regular
Trustees. Each temporary Certificate shall be executed by the Regular Trustees
(or, if there are more than two Regular Trustees, by any two of the Regular
Trustees) on behalf of the Trust upon the same conditions and in substantially
the same manner, and with like effect, as definitive Certificates. Without
unnecessary delay, the Regular Trustees on behalf of the Trust will execute and
furnish definitive Certificates and thereupon any or all temporary Certificates
may be surrendered to the transfer agent and registrar in exchange therefor
(without charge to the Holders). Each Preferred Security Certificate whether in
temporary or definitive form shall be countersigned, upon receipt of a written
order of the Trust signed by one Regular Trustee, by the manual signature of an
authorized signatory of the Person acting as registrar and transfer agent for
the Preferred Securities, which shall initially be the Property Trustee.
(d) The consideration received by the Trust for the issuance
of the Securities shall constitute a contribution to the capital of the Trust
and shall not constitute a loan to the Trust.
(e) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(f) Every Person, by virtue of having become a Holder or a
Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
(g) Upon issuance of the Securities as provided in this
Declaration, the Regular Trustees on behalf of the Trust shall return to
ConocoPhillips the $10 constituting initial trust assets as set forth in the
Original Declaration.
[SECTION 7.02 Conversion Agent
The Trust shall maintain an office or agency where Preferred
Securities may be presented for conversion pursuant to the terms thereof set
forth in Exhibit B hereto ("Conversion Agent"). The Trust may appoint the
Conversion Agent and may appoint one or more additional Conversion Agents in
such other locations as it may determine. The term "Conversion Agent" includes
any additional Conversion Agent. The Trust may change any Conversion Agent
without prior notice to any Holders. If the Trust fails to appoint or maintain
another entity as Conversion Agent, the Property Trustee will act as such. The
Trust or any of its Affiliates may
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act as Conversion Agent. The Conversion Agent shall be entitled to the rights
and protections extended to the Property Trustee when acting in such capacity.
The Property Trustee is hereby initially appointed as the
Conversion Agent for the Preferred Securities.]
ARTICLE 8
DISSOLUTION OF THE TRUST
SECTION 8.01 Dissolution of the Trust.
The Trust shall dissolve:
(i) when all of the Securities shall have been called for
redemption and the amounts necessary for redemption thereof shall have
been paid to the Holders of the Securities in accordance with the terms
of the Securities; or
(ii) when all of the Debentures shall have been distributed to
the Holders of the Securities in exchange for all of the Securities in
accordance with the terms of the Securities; or
(iii) upon the expiration of the term of the Trust as set
forth in Section 3.17; [or]
(iv) upon a decree of judicial dissolution of the Trust[; or
(v) upon the distribution of Shares to all Holders upon
conversion of all outstanding Securities].
Upon dissolution and the completion of the winding up of the
affairs of the Trust, the Trust and this Declaration shall terminate when a
certificate of cancellation is filed by the Regular Trustees (without the need
for execution thereof by any other Trustee) with the Secretary of State of the
State of Delaware. The Regular Trustees shall so file such a certificate as soon
as practicable after the occurrence of an event referred to in this Section
8.01.
The provisions of Sections 3.12 and 4.02 and Article 10 shall
survive the dissolution and termination of the Trust and this Declaration.
ARTICLE 9
TRANSFER OF INTERESTS
SECTION 9.01 Transfer of Securities.
(a) Securities may only be transferred, in whole or in part,
in accordance with the terms and conditions set forth in this Declaration and in
the terms of the Securities. To the fullest extent permitted by applicable law,
any transfer or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
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(b) Subject to this Article 9, Preferred Securities shall be
freely transferable.
(c) The Holder of the Common Securities may not transfer the
Common Securities except (a) in connection with transactions permitted under
Section 5.01 of the Indenture, or (b) to the Sponsor or an Affiliate thereof in
compliance with applicable law (including the Securities Act and applicable
state securities and blue sky laws); provided, however, that the Holder of the
Common Securities shall at all times be a United States Person. To the fullest
extent permitted by applicable law, any attempted transfer of the Common
Securities other than as set forth in this Section 9.01(c) shall be null and
void.
SECTION 9.02 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of any transfer of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees and
the transfer agent and registrar may require) in respect of any tax or other
government charges which may be imposed in relation to such transfer. Upon
surrender for registration of transfer of any Certificate, the Regular Trustees
shall cause one or more new Certificates to be issued therefor. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees and
the transfer agent and registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Certificate surrendered for
registration of transfer shall be canceled or caused to be canceled by the
Regular Trustees. A transferee of a Certificate shall be entitled to the rights
and subject to the obligations of a Holder hereunder upon the receipt by such
transferee of a Certificate. By acceptance of a Certificate, each transferee
shall be deemed to have agreed to be bound by this Declaration.
SECTION 9.03 Deemed Security Holders.
The Trustees may treat the Person in whose name any Certificate
shall be registered on the books and records of the Trust as the sole holder of
such Certificate and of the Securities represented by such Certificate for
purposes of receiving Distributions and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such Certificate or in the Securities represented by such
Certificate on the part of any Person, whether or not the Trustees shall have
actual or other notice thereof.
SECTION 9.04 Book-Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Security Certificates, on original issuance
[(including Preferred Securities, if any, issued pursuant to the exercise of any
Over-allotment Option)], will be issued in the form of one or more, fully
registered, global Preferred Security Certificates (each a "Global
Certificate"), to be delivered to DTC, the initial Clearing Agency, by, or on
behalf of, the Trust. Such Global Certificates shall initially be registered on
the books and records of the Trust in the name of Cede & Co., the nominee of
DTC, and no Preferred Security Beneficial Owner will receive a definitive
Preferred Security Certificate representing such Preferred Security Beneficial
Owner's interests in such Global Certificates, except as provided in Section
9.07. Unless and until definitive, fully
38
registered Preferred Security Certificates (the "Definitive Preferred Security
Certificates") have been issued to the Preferred Security Beneficial Owners
pursuant to Section 9.07:
(a) the provisions of this Section 9.04 shall be in full force
and effect;
(b) the Trust and the Trustees shall be entitled to deal with
the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving
approvals, votes or consents hereunder) as the Holder of the Preferred
Securities and the sole holder of the Global Certificates and, except
as set forth herein in Section 9.07 or in Rule 3a-7 (if the Trust is
excluded from the definition of an Investment Company solely by reason
of Rule 3a-7) with respect to the Property Trustee, shall have no
obligation to the Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.04
conflict with any other provisions of this Declaration, the provisions
of this Section 9.04 shall control; and
(d) the rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by applicable law and agreements between
such Preferred Security Beneficial Owners and the Clearing Agency
and/or the Clearing Agency Participants. DTC will make book-entry
transfers among the Clearing Agency Participants and receive and
transmit payments of Distributions on the Global Certificates to such
Clearing Agency Participants; provided that, solely for the purposes of
determining whether the Holders of the requisite amount of Preferred
Securities have voted on any matter provided for in this Declaration,
so long as definitive Preferred Security Certificates have not been
issued (pursuant to Section 9.07 hereof), the Trustees may conclusively
rely on, and shall be protected in relying on, any written instrument
(including a proxy) delivered to the Trustees by the Clearing Agency
setting forth the Preferred Security Beneficial Owners' votes or
assigning the right to vote on any matter to any other Persons either
in whole or in part.
SECTION 9.05 Notices to Holders of Certificates.
Whenever a notice or other communication to the Holders is
required to be given under this Declaration, unless and until Definitive
Preferred Security Certificates shall have been issued pursuant to Section 9.07,
the relevant Trustees shall give all such notices and communications, specified
herein to be given to Holders of Preferred Securities, to the Clearing Agency
and, with respect to any Preferred Security Certificate registered in the name
of a Clearing Agency or the nominee of a Clearing Agency, the Trustees shall
have no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.06 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency with
respect to the Preferred Securities.
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SECTION 9.07 Definitive Preferred Security Certificates.
If (i) a Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 9.06, (ii) an Event of Default has occurred with respect to
the Preferred Securities and is continuing, and the Property Trustee has
received a request from the Clearing Agency to issue Definitive Preferred
Security Certificates in lieu of all or a portion of the Global Certificates (in
which case the Regular Trustees shall deliver such Definitive Preferred Security
Certificates within 30 days of such request) or (iii) the Regular Trustees elect
after consultation with the Sponsor to terminate the book-entry system through
the Clearing Agency with respect to the Preferred Securities, then (x)
Definitive Preferred Security Certificates shall be prepared by the Regular
Trustees on behalf of the Trust with respect to such Preferred Securities in
accordance with Section 7.01(c) and (y) upon surrender of the Global
Certificates by the Clearing Agency, accompanied by registration instructions,
the Regular Trustees shall cause Definitive Preferred Security Certificates to
be delivered to Preferred Security Beneficial Owners in accordance with the
instructions of the Clearing Agency. Upon such event, the Regular Trustees shall
give notice thereof to the Debenture Trustee. Neither the Trustees nor the Trust
shall be liable for any delay in delivery of such instructions and each of them
may conclusively rely on, and shall be protected in relying on, such
instructions.
SECTION 9.08 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificates should be surrendered to the
Regular Trustees, or if the Regular Trustees shall receive evidence to their
satisfaction of the destruction, loss or theft of any Certificate; and (b) there
shall be delivered to the Regular Trustees such security or indemnity as may be
required by them to keep each of them and the Trust harmless, then in the
absence of notice that such Certificate shall have been acquired by a protected
purchaser, the Regular Trustees (or if there are more than two Regular Trustees
by any two of the Regular Trustees) on behalf of the Trust shall execute and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Certificate, a new Certificate of like denomination. In connection with
the issuance of any new Certificate under this Section 9.08, the Regular
Trustees may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Certificate issued pursuant to this Section 9.08 shall constitute conclusive
evidence of an ownership interest in the relevant Securities, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
ARTICLE 10
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 10.01 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in a
manner such Indemnified Person reasonably believed to be within
40
the scope of the authority conferred on such Indemnified Person by this
Declaration or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's gross
negligence (or, in the case of the Property Trustee, negligence) or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Trust and upon such information, opinions,
reports or statements presented to the Trust by any Person as to matters the
Indemnified Person reasonably believes are within such other Person's
professional or expert competence and who has been selected with reasonable care
by or on behalf of the Trust, including information, opinions, reports or
statements as to the value or amount of the assets, liabilities, profits, losses
or any other facts pertinent to the existence and amount of assets from which
Distributions to Holders of Securities might properly be paid.
(c) Pursuant to Section 3803(a) of the Statutory Trust Act,
the Holders of Securities, in their capacities as Holders, shall be entitled to
the same limitation of liability that is extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware.
SECTION 10.02 Indemnification.
(a) To the fullest extent permitted by applicable law, the
Sponsor shall indemnify and hold harmless each Indemnified Person from and
against any loss, liability, expense, damage or claim incurred by such
Indemnified Person arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or by reason of any act or
omission performed or omitted by such Indemnified Person in good faith on behalf
of the Trust and in a manner such Indemnified Person reasonably believed to be
within the scope of authority conferred on such Indemnified Person by this
Declaration, except that no Indemnified Person shall be entitled to be
indemnified in respect of any loss, liability, expense, damage or claim incurred
by such Indemnified Person by reason of gross negligence (or, in the case of the
Property Trustee, negligence) or willful misconduct with respect to such acts or
omissions.
(b) The provisions of this Section 10.02 shall survive the
termination of this Declaration or the resignation or removal of any Trustee.
SECTION 10.03 Outside Business.
The Sponsor and any Trustee (in the case of the Property
Trustee, subject to Section 5.01(c)) may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business of the Trust, and the Trust and
the Holders of Securities shall have no rights by virtue of this Declaration in
and to such independent ventures or the income or profits derived therefrom, and
the pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. Neither the Sponsor nor any
Trustee shall be obligated to present any particular investment or other
opportunity to the Trust even if such opportunity is of a character that, if
presented to the Trust, could be taken by the Trust, and the Sponsor or any
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to
41
others any such particular investment or other opportunity. Any Trustee may
engage or be interested in any financial or other transaction with the Sponsor
or any Affiliate of the Sponsor or may act as depositary for, trustee or agent
for, or act on any committee or body of holders of, securities or other
obligations of the Sponsor or any of its Affiliates.
ARTICLE 11
ACCOUNTING
SECTION 11.01 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.02 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account, records
and supporting documents, which shall reflect in reasonable detail each
transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles in the United States of America, consistently applied. The Trust
shall use the accrual method of accounting for U.S. federal income tax purposes.
(b) If required by applicable law, the Regular Trustees shall,
as soon as available after the end of each Fiscal Year of the Trust, cause to be
prepared and mailed to each Holder of Securities unaudited financial statements
of the Trust for such Fiscal Year, prepared in accordance with generally
accepted accounting principles in the United States of America; provided that if
the Trust is required to comply with the periodic reporting requirements of
Section 13(a) or 15(d) of the Exchange Act, such financial statements for such
Fiscal Year shall be examined and reported on by a firm of independent certified
public accountants selected by the Regular Trustees (which firm may be the same
firm used by the Sponsor as its firm of independent certified public
accountants).
(c) The Regular Trustees shall cause to be duly prepared and
mailed to each Holder of Securities any U.S. federal income tax information
statement or form required by any applicable provisions of the Code or the
Treasury Regulations, containing such information with regard to the Securities
held by each Holder as is required by any applicable provisions of the Code and
the Treasury Regulations. Notwithstanding any right under the Code to deliver
any such statement at a later date, the Regular Trustees shall endeavor to
deliver all such statements or forms within 30 days after the end of each Fiscal
Year of the Trust.
(d) The Regular Trustees shall cause to be properly prepared
and filed on a timely basis with the appropriate taxing authority any U.S.
federal income tax return or form as is required by any applicable provisions of
the Code or the Treasury Regulations, and any other tax returns or forms
required to be filed by or on behalf of the Trust with any state, local or other
taxing authority.
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SECTION 11.03 Banking.
The Trust shall maintain one or more non-interest bearing bank
accounts in the name and for the sole benefit of the Trust; provided, however,
that all payments of funds in respect of the Debentures held by the Property
Trustee shall be made directly to the Property Account and no other funds from
the Trust shall be deposited in the Property Account. The sole signatories for
such accounts shall be designated by the Regular Trustees; provided, however,
that the Property Trustee shall designate the sole signatories for the Property
Account.
SECTION 11.04 Withholding.
The Trust and the Trustees shall comply with all withholding
requirements under applicable law. The Regular Trustees shall request, and the
Holders shall provide to the Trust, such forms or certificates as are necessary
to establish an available exemption from withholding with respect to each
Holder, and any representations and forms as shall reasonably be requested by
the Regular Trustees to assist them in determining the extent of, and in
fulfilling, the Trust's withholding obligations. The Regular Trustees on behalf
of the Trust shall file required forms with applicable jurisdictions and, unless
an exemption from withholding is properly established by a Holder, shall remit
amounts withheld with respect to the Holder to applicable jurisdictions. To the
extent that the Trust is required to withhold and pay over any amounts to any
authority with respect to Distributions or allocations to any Holder, the
Regular Trustees shall so notify the Property Trustee and shall provide such
information as is reasonably requested by the Property Trustee to enable the
Property Trustee to effect such withholding, and the amount withheld shall be
deemed to be a Distribution in the amount of the withholding to the Holder. In
the event of any claimed overwithholding, Holders shall be limited to an action
against the applicable jurisdiction. If the amount required to be withheld was
not withheld from a Distribution to a Holder, the Trust may reduce subsequent
Distributions to such Holder (or its successor) by the amount of such under
withholding.
ARTICLE 12
AMENDMENTS AND MEETINGS
SECTION 12.01 Amendments.
(a) Except as otherwise provided in this Declaration or by any
applicable terms of the Securities, this Declaration may be amended by, and only
by, a written instrument executed by a majority of the Regular Trustees;
provided, however, that (i) no amendment or modification to this Declaration
shall be made, and any such purported amendment shall be void and ineffective:
(A) unless the Trustees shall have first received: (x) an Officers' Certificate
that such amendment is permitted by, and conforms to, the terms of this
Declaration; and (y) an Opinion of Counsel that such amendment is permitted by,
and conforms to, the terms of this Declaration and that all conditions
precedent, if any, in this Declaration to the execution and delivery of such
amendment have been satisfied; and (B) to the extent the result of such
amendment would be to: (x) cause the Trust to fail to continue to be classified
for purposes of U.S. federal income taxation as a grantor trust; (y) reduce or
otherwise adversely affect the rights or powers of the Property Trustee in
contravention of the Trust Indenture Act; or (z) cause the
43
Trust to be deemed to be an Investment Company required to be registered under
the Investment Company Act; (ii) at such time after the Trust has issued any
Securities which remain outstanding, any amendment which would adversely affect
the rights, privileges or preferences of any Holder of Securities in any
material respect may be effected only with such additional requirements as may
be set forth in the terms of such Securities; (iii) Section 4.02, Section
9.01(c), Section 10.01(c) and this Section 12.01 shall not be amended without
the consent of all of the Holders of the Securities; (iv) no amendment which
adversely affects the rights, powers and privileges of the Property Trustee or
the Delaware Trustee shall be made without the consent of the Property Trustee
or the Delaware Trustee, respectively; (v) Article 4 shall not be amended
without the consent of the Sponsor; and (vi) the rights of the Holders of Common
Securities under Article 5 to increase or decrease the number of, and to
appoint, replace or remove, Trustees shall not be amended without the consent of
each Holder of Common Securities.
(b) Notwithstanding Section 12.02(a), this Declaration may be
amended by a written instrument executed by a majority of the Regular Trustees
without the consent of the Holders of the Securities to (i) cure any ambiguity,
(ii) correct or supplement any provision in this Declaration that may be
defective or inconsistent with any other provision of this Declaration, (iii)
with the consent of the Sponsor, add to the covenants, restrictions or
obligations of the Sponsor, (iv) conform to any changes in Rule 3a-7 (if the
Trust is excluded from the definition of an Investment Company solely by reason
of Rule 3a-7) or any change in interpretation or application of Rule 3a-7 (if
the Trust is excluded from the definition of an Investment Company solely by
reason of Rule 3a-7) by the Commission, (v) amend any other provisions with
respect to matters or questions arising under this Declaration which shall not
be inconsistent with the other provisions of this Declaration, (vi) modify,
eliminate or add to any provisions of this Declaration to such extent as shall
be necessary to ensure that the Trust will be classified for U.S. federal income
tax purposes as a grantor trust at all times that any Securities are outstanding
or to ensure that the Trust will not be required to register as an Investment
Company under the Investment Company Act, (vii) pursuant to Section 5.01,
evidence the acceptance of the appointment of a successor Trustee or fill a
vacancy created by an increase in the number of Regular Trustees and (viii) to
change or eliminate any provision of this Declaration or the Securities;
provided that, in the case of this clause (viii), any such change or amendment
does not adversely affect in any material respect the rights, preferences or
privileges of the Holders.
SECTION 12.02 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of Preferred Securities and/or
Common Securities may be called at any time by the Regular Trustees (or as
provided in the terms of the Securities) to consider and act on any matter on
which the Holders of such class of Securities are entitled to act under the
terms of this Declaration, the terms of the Securities or the rules of any
Exchange on which the Preferred Securities are then listed or traded. The
Regular Trustees shall call a meeting of the Holders of Preferred Securities or
Common Securities, if directed to do so by Holders of at least 25% in
liquidation amount of such class of Securities. Such direction shall be given by
delivering to the Regular Trustees one or more notices in writing stating that
the signing Holders of Securities wish to call a meeting and indicating the
general or specific purpose for which the meeting is to be called. Any Holders
of Securities calling a meeting shall specify in
44
writing the Certificates held by the Holders of Securities exercising the right
to call a meeting and only those specified Certificates shall be counted for
purposes of determining whether the required percentage set forth in the second
sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms of
the Securities, the following provision shall apply to meetings of the Holders
of Securities:
(i) Notice of any such meeting shall be given by mail to all
the Holders of Securities having a right to vote thereat not less than
seven (7) days nor more than sixty (60) days prior to the date of such
meeting. Whenever a vote, consent or approval of the Holders of
Securities is permitted or required under this Declaration or the rules
of any Exchange on which the Preferred Securities are then listed or
traded, such vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a meeting of the
Holders of Securities may be taken without a meeting and without prior
notice if a consent in writing setting forth the action so taken is
signed by Holders of Securities owning not less than the minimum
aggregate liquidation amount of Securities that would be necessary to
authorize or take such action at a meeting at which all Holders of
Securities having a right to vote thereon were present and voting.
Prompt notice of the taking of action without a meeting shall be given
to the Holders of Securities entitled to vote who have not consented in
writing. The Regular Trustees may specify that any written ballot
submitted to the Holders of Securities for the purpose of taking any
action without a meeting shall be returned to the Trust within the time
specified by the Regular Trustees.
(ii) Each Holder of a Security may authorize any Person to act
for it by proxy on all matters in which a Holder of a Security is
entitled to participate, including waiving notice of any meeting, or
voting or participating at a meeting. No proxy shall be valid after the
expiration of 11 months from the date thereof unless otherwise provided
in the proxy. Every proxy shall be revocable at the pleasure of the
Holder of the Security executing it. Except as otherwise provided
herein or in the terms of the Securities, all matters relating to the
giving, voting or validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies, and
judicial interpretations thereunder, as if the Trust were a Delaware
corporation and the Holders of the Securities were stockholders of a
Delaware corporation.
(iii) Each meeting of the Holders of the Securities shall be
conducted by the Regular Trustees or by such other Person that the
Regular Trustees may designate.
(iv) Unless otherwise provided in the Statutory Trust Act,
this Declaration or the rules of any Exchange on which the Preferred
Securities are then listed or traded, the Regular Trustees, in their
sole discretion, shall establish all other provisions relating to
meetings of Holders of Securities, including notice of the time, place
or purpose of any meeting at which any matter is to be voted on by any
Holders of Securities, waiver of any such notice, action by consent
without a meeting, the establishment of a record date, quorum
requirements, voting in person or by proxy or any other matter with
respect to the exercise of any such right to vote.
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ARTICLE 13
REPRESENTATIONS OF THE PROPERTY TRUSTEE AND THE DELAWARE TRUSTEE
SECTION 13.01 Representations and Warranties of the Property Trustee.
The Trustee which acts as the initial Property Trustee
represents and warrants to the Trust and to the Sponsor at the date of this
Declaration, and each Successor Property Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Property Trustee's acceptance
of its appointment as the Property Trustee that:
(a) The Property Trustee is a national banking association or
a banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the United States or
the laws of the state of its incorporation, with trust power and
authority to execute and deliver, and to carry out and perform its
obligations under the terms of, this Declaration.
(b) The execution, delivery and performance by the Property
Trustee of this Declaration have been duly authorized by all necessary
corporate action on the part of the Property Trustee. This Declaration
has been duly executed and delivered by the Property Trustee, and
constitutes a legal, valid and binding obligation of the Property
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or
constitute a breach of (i) the charter or by-laws of the Property
Trustee, (ii) any applicable law, rule or regulation to which the
Property Trustee is subject or (iii) any agreement or instrument to
which the Property Trustee is a party or is otherwise bound.
(d) No consent, approval or authorization of, or registration
with or notice to, any banking authority which supervises or regulates
the Property Trustee is required for the execution, delivery or
performance by the Property Trustee of this Declaration.
(e) The Property Trustee satisfies the qualifications set
forth in Section 5.01(c).
SECTION 13.02 Representations and Warranties of the Delaware Trustee.
The Trustee which acts as the initial Delaware Trustee
represents and warrants to the Trust and the Sponsor at the date of this
Declaration, and each Successor Delaware Trustee represents and warrants to the
Trust and the Sponsor at the time of the Successor Delaware Trustee's acceptance
of its appointment as the Delaware Trustee, that:
46
(a) The Delaware Trustee is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware, with corporate power and authority to execute and deliver,
and to carry out and perform its obligations under the terms of, this
Declaration.
(b) The execution, delivery and performance by the Delaware
Trustee of this Declaration have been duly authorized by all necessary
corporate action on the part of the Delaware Trustee. This Declaration
has been duly executed and delivered by the Delaware Trustee and
constitutes a legal, valid and binding obligation of the Delaware
Trustee, enforceable against it in accordance with its terms, subject
to applicable bankruptcy, reorganization, moratorium, insolvency and
other similar laws affecting creditors' rights generally and to general
principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding
in equity or at law).
(c) The execution, delivery and performance of this
Declaration by the Delaware Trustee does not conflict with or
constitute a breach of (i) the charter or by-laws of the Delaware
Trustee, (ii) any applicable law, rule or regulation to which the
Delaware Trustee is subject or (iii) any agreement or instrument to
which the Delaware Trustee is a party or is otherwise bound.
(d) The Delaware Trustee is a natural person who is a resident
of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and is a
Person that satisfies for the Trust Section 3807(a) of the Statutory
Trust Act.
ARTICLE 14
MISCELLANEOUS
SECTION 14.01 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and delivered, telecopied
or mailed by first class mail as follows:
(a) if given to the Trust, in care of the Regular Trustees at
the Trust's mailing address set forth below (or such other address as
the Regular Trustees on behalf of the Trust may give notice of to the
Holders of the Securities and the Sponsor):
ConocoPhillips Trust [I] [II]
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attention: General Counsel
Telephone: (281) 293-1000
Telecopy: (281) 293-1600
47
(b) if given to the Property Trustee, at the mailing address
of the Property Trustee set forth below (or such other address as the
Property Trustee may give notice of to the Holders of the Securities
and the Sponsor):
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5498
Telecopy: (212) 815-5707
(c) if given to the Delaware Trustee, at the mailing address
of the Delaware Trustee set forth below (or such other address as the
Delaware Trustee may give notice of to the Holders of the Securities
and the Sponsor):
The Bank of New York (Delaware)
700 White Clay Center, Route 273
Newark, Delaware 19711
Attention: Corporate Administration & Compliance
Telecopy: (302) 283-8279
(d) if given to the Holder of the Common Securities or the
Sponsor, at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities or the Sponsor may
give notice of to the Trust):
ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attention: General Counsel
Telephone: (281) 293-1000
Telecopy: (281) 293-1600
(e) if given to any other Holder, at the address set forth on
the books and records of the Trust.
A copy of any notice to the Property Trustee or the Delaware
Trustee shall also be sent to the Trust. All notices shall be deemed to have
been given when (i) received in person, (ii) telecopied with receipt confirmed
or (iii) received if mailed by first class mail, postage prepaid, except that if
a notice or other document is refused delivery or cannot be delivered because of
a changed address of which no notice was given, such notice or other document
shall be deemed to have been delivered on the date of such refusal or inability
to deliver.
SECTION 14.02 Undertaking for Costs.
All parties to this Declaration agree, and each Holder of any
Securities by his or her 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 Declaration, or in any
48
suit against the Property Trustee for any action taken or omitted by it as
Property 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;
provided, however, that the provisions of this Section 14.02 shall not apply to
any suit instituted by the Property Trustee, to any suit instituted by any
Holder of Preferred Securities, or group of Holders of Preferred Securities,
holding more than 25% in aggregate liquidation amount of the outstanding
Preferred Securities, or to any suit instituted by any Holder of Preferred
Securities for the enforcement of the payment of the principal of, any premium
or interest on the Debentures, on or after the respective due dates expressed in
such Debentures.
SECTION 14.03 Governing Law.
This Declaration, the Securities and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Delaware and all rights and remedies shall be governed by such laws
without regard to any principles of conflict of laws thereof that would result
in the application of the laws of any other jurisdiction.
SECTION 14.04 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.05 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the application of such provision to Persons
or circumstances other than those to which it is held invalid, shall not be
affected thereby.
SECTION 14.06 Counterparts.
This Declaration may contain more than one counterpart of the
signature pages and this Declaration may be executed by the affixing of the
signature of the Sponsor and each of the Trustees to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
SECTION 14.07 Intention of the Parties.
It is the intention of the parties hereto that the Trust not be
classified for U.S. federal income tax purposes as an association taxable as a
corporation or partnership but that the Trust be treated as a grantor trust for
U.S. federal income tax purposes. The provisions of this Declaration shall be
interpreted to further this intention of the parties.
49
SECTION 14.08 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is named
or referred to, the successors and assigns of such party shall be deemed to be
included, and all covenants and agreements in this Declaration by the Sponsor
and the Trustees shall bind and inure to the benefit of their respective
successors and assigns, whether so expressed.
SECTION 14.09 No Recourse.
The Trust's obligations hereunder are intended to be the
obligations of the Trust and no recourse for the payment of Distributions, or
for any claim upon the Securities or otherwise in respect thereof, shall be had
against any Holder of Securities or any Affiliate of a Holder of Securities,
solely by reason of such Person's being a Holder of Securities or an Affiliate
of a Holder of Securities, it being understood that the Holder of Securities,
solely by reason of being a Holder of Securities, has limited liability (in
accordance with the provisions of the Statutory Trust Act) for the liabilities
and obligations of the Trust. Nothing contained in this Section 14.09 shall be
construed to limit the exercise or enforcement, in accordance with the terms of
this Declaration, the Preferred Securities Guarantee and the Indenture, of the
rights and remedies against the Trust or the Sponsor.
50
IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
CONOCOPHILLIPS,
as Sponsor
By:
----------------------------------
Name:
Title:
-------------------------------------
----------,
as Regular Trustee
-------------------------------------
----------,
as Regular Trustee
-------------------------------------
----------,
as Regular Trustee
THE BANK OF NEW YORK,
as Property Trustee
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Delaware Trustee
By:
----------------------------------
Name:
Title:
51
EXHIBIT A
CERTIFICATE OF TRUST
OF
CONOCOPHILLIPS TRUST [I] [II]
THIS CERTIFICATE OF TRUST of ConocoPhillips Trust [I] [II] (the
"Trust"), dated as of November 6, 2002, is being duly executed and filed by the
undersigned, as trustees, with the Secretary of State of the State of Delaware
to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code
Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust being formed hereby
is "ConocoPhillips Trust [I] [II]."
2. Delaware Trustee. The name and business address of the
trustee of the Trust with a principal place of business in the State of Delaware
are The Bank of New York (Delaware), 700 White Clay Center, Route 273, Newark,
Delaware 19711.
3. Effective Date. This Certificate of Trust shall be
effective at the time of its filing with the Secretary of State of the State of
Delaware.
4. Counterparts. This Certificate of Trust may be executed in
one or more counterparts.
A-1
IN WITNESS WHEREOF, the undersigned, being all of the trustees
of the Trust at the time of filing this Certificate of Trust, have executed this
Certificate of Trust as of the date first above written pursuant to Section
3811(a) of the Act.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely as Delaware Trustee
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Property Trustee
By:
----------------------------------
Name:
Title:
JEFF W. SHEETS,
not in his individual capacity,
but solely as Regular Trustee
-------------------------------------
A-2
EXHIBIT B
TERMS OF
PREFERRED SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated
Declaration of Trust of ConocoPhillips Trust [I] [II] dated as of
______________, _____ (as amended from time to time, the "Declaration"), the
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Preferred Securities are set forth below (each capitalized
term used but not defined herein having the meaning set forth in the
Declaration):
1. DESIGNATION AND NUMBER. _____________ (____________) Preferred
Securities of the Trust with an aggregate liquidation amount at any time
outstanding with respect to the assets of the Trust of
____________________________ Dollars ($____________) [(including up to
____________ (__________) Preferred Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of _______________
($_________) issuable upon exercise of the Over-allotment Option)], and each
with a liquidation amount with respect to the assets of the Trust of $___ per
Preferred Security, are hereby designated as "__% [[Convertible] Trust Preferred
Securities]." The Preferred Security Certificates evidencing the Preferred
Securities shall be substantially in the form attached hereto as Annex I, with
such changes and additions thereto or deletions therefrom as may be required by
ordinary usage, custom or practice, or to conform to the rules of any Exchange
on which the Preferred Securities are then listed or traded. In connection with
the issuance and sale of the Preferred Securities and the Common Securities, the
Trust will purchase as trust assets Debentures of ConocoPhillips having an
aggregate principal amount equal to the aggregate liquidation amount of the
Preferred Securities and the Common Securities so issued, and bearing interest
at an annual rate equal to the annual Distribution rate on the Preferred
Securities and the Common Securities and having payment and redemption
provisions which correspond to the payment and redemption provisions of the
Preferred Securities and the Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Preferred Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $___ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one calendar quarter will accumulate
additional distributions thereon at the Coupon Rate per annum (to the extent
permitted by applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
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(b) Distributions on the Preferred Securities will accumulate
from ______________, ____ and will be payable [quarterly] [semi-annually] in
arrears, on [_____________, ____________,] _____________ and _____________ of
each year, commencing on _____________, ____, except as otherwise described
below, but only if and to the extent that interest payments are made in respect
of the Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures,
ConocoPhillips has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
of the Debentures at any time and from time to time for a period not exceeding
[20] [10] consecutive [quarterly] [semi-annual] interest periods (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures. As a consequence of such deferral, Distributions
shall also be deferred. Despite such deferral, Distributions will continue to
accumulate on the Preferred Securities with additional distributions thereon (to
the extent permitted by applicable law but not at a rate greater than the rate
at which interest is then accruing on the Debentures) at the Coupon Rate
compounded [quarterly] [semi-annually] during any such Extension Period. No
Extension Period shall extend beyond the stated maturity of the Debentures.
Prior to the termination of any such Extension Period, ConocoPhillips may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[20] [10] consecutive [quarterly] [semi-annual] interest periods or extend
beyond the stated maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, ConocoPhillips may
commence a new Extension Period, subject to the foregoing provisions. On the
first Distribution payment date following the end of an Extension Period,
payments of accumulated Distributions will be payable to Holders of Preferred
Securities as they appear on the books and records of the Trust (regardless of
who the Holders may have been on other dates during the Extension Period) on the
record date for such Distribution payment date.
(c) Distributions on the Preferred Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates shall be
the Business Day next preceding the relevant Distribution payment date, and if
the Preferred Securities are no longer in book-entry only form, the relevant
record dates will be the close of business on the [_________, _________,]
_________, and _________ next preceding the relevant Distribution payment date,
which record and payment dates correspond to the record and interest payment
dates on the Debentures. Distributions payable on any Preferred Securities that
are not punctually paid on any Distribution payment date as a result of
ConocoPhillips' having failed to make the corresponding payment on the
Debentures will forthwith cease to be payable to the person in whose name such
Preferred Security is registered on the relevant record date, and such defaulted
payment will instead be payable to the person in whose name such Preferred
Security is registered on the special record date established by the Regular
Trustees, which record date shall correspond to the special record date or other
specified date determined in accordance with the Indenture; provided, however,
that Distributions shall not be considered payable on any Distribution payment
date falling within an Extension Period unless ConocoPhillips has elected to
make a full or partial payment of accrued interest on the Debentures on such
Distribution payment date. Subject to any applicable laws and regulations
B-2
and the provisions of the Declaration, each payment in respect of the Preferred
Securities will be made as described in Section [9] hereof. If any date on which
Distributions are payable on the Preferred Securities is not a Business Day,
then payment of the Distribution payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay) except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the date such payment was originally payable. Notwithstanding anything herein
to the contrary, the record dates and payment dates for Distributions shall be
the same as the record dates and payment dates for the Debentures.
(d) All Distributions paid with respect to the Preferred
Securities and the Common Securities will be paid Pro Rata (as defined below) to
the Holders thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such payments.
(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for under the Declaration, such money
or property shall be distributed Pro Rata among the Holders of the Preferred
Securities and the Common Securities.
[(f) In the event of an election by the Holder to convert its
Preferred Securities through the Conversion Agent into Shares pursuant to the
terms of the Preferred Securities as set forth herein, no payment, allowance or
adjustment shall be made with respect to accumulated and unpaid Distributions on
such Preferred Securities, or be required to be made; provided, however, that if
a Preferred Security is surrendered for conversion after the close of business
on any regular record date for payment of a Distribution and before the opening
of business on the corresponding Distribution payment date, then,
notwithstanding such conversion, the Distribution payable on such Distribution
payment date will be paid in cash to the person in whose name the Preferred
Security is registered at the close of business on such record date, and (other
than a Preferred Security or a portion of a Preferred Security called for
redemption on a redemption date occurring after such record date and on or prior
to such Distribution payment date) when so surrendered for conversion, the
Preferred Security must be accompanied by payment of an amount equal to the
Distribution payable on such Distribution payment date.]
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $___ per Preferred Security and Common Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
dissolution, and after satisfaction of liabilities to the creditors of the
Trust, Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities and the Common Securities and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on, the Preferred Securities and the Common Securities,
shall be distributed Pro
B-3
Rata to the Holders of the Preferred Securities and the Common Securities in
exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Preferred Securities and the Common
Securities shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to
direct the Property Trustee in writing at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, to distribute
Debentures to Holders in exchange for Securities (which direction is optional
and wholly within the discretion of the Holder of the Common Securities). Upon
the receipt of any such written direction, the Property Trustee shall promptly,
after satisfaction of liabilities to creditors of the Trust, (i) dissolve the
Trust and (ii) distribute Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of the Preferred Securities and the
Common Securities held by each Holder, which Debentures bear accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on the
Preferred Securities and the Common Securities of such Holder, in exchange for
the Preferred Securities and Common Securities of such Holder.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Preferred Securities will no longer be deemed
to be outstanding and may be canceled by the Regular Trustees, and (ii)
Certificates representing Preferred Securities will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accumulated and unpaid Distributions to, but excluding, the
date fixed for such distribution on, such Preferred Securities until such
Certificates are presented to ConocoPhillips or its agent for transfer or
reissuance.
(d) If Debentures are distributed to Holders of the Preferred
Securities, ConocoPhillips, pursuant to the terms of the Indenture, will use its
reasonable best efforts to have the Debentures listed on the New York Stock
Exchange or on such other Exchange as the Preferred Securities were listed or
traded immediately prior to the distribution of the Debentures.
4. REDEMPTION OF DEBENTURES. The Preferred Securities may be redeemed
only if Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity, upon redemption at any time or from time to time
[on or after _________, ____], the proceeds of such repayment will be
promptly applied to redeem Pro Rata
B-4
Preferred Securities and Common Securities having an aggregate
liquidation amount equal to the aggregate principal amount of the
Debentures so repaid or redeemed, upon not less than 30 nor more than
60 days' notice, at a redemption price [of $______ per Preferred
Security and Common Security] [equal to the greater of (i) the
liquidation amount of the Preferred Securities and Common Securities to
be redeemed and (ii) the Make-Whole Amount, in each case] plus an
amount equal to accumulated and unpaid Distributions thereon to, but
excluding, the date of redemption, payable in cash (the "Redemption
Price"). The date of any such repayment or redemption of Preferred
Securities and Common Securities shall be established to coincide with
the repayment or redemption date of the Debentures.
["Make-Whole Amount" shall be equal to, as determined by the
Quotation Agent, the sum of the present values, calculated as of the
redemption date, of (i) each interest payment that would have been
payable on the Debentures or portions thereof being redeemed, if such
Debentures or portions thereof were not redeemed, on each scheduled
interest payment date occurring after the redemption date (excluding
any accrued interest for the period prior to the redemption date) and
(ii) the principal amount of such Debentures or portions thereof that
would have been payable, if such Debentures or portions thereof were
not redeemed, at the scheduled maturity of such Debentures or portions
thereof being redeemed (the "Remaining Life"), in each case discounted
to the redemption date on a semiannual basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate plus ___
basis points for the purpose of calculating the Redemption Price.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to (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 Remaining Life;
provided that if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life will be determined and the Treasury
Rate will 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 such 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 such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity date
comparable to the Remaining Life 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
B-5
Remaining Life. If no United States Treasury security has a maturity
date which is within a period from three months before to three months
after the Remaining Life, the two most closely corresponding United
States Treasury securities shall be used as the Comparable Treasury
Issue, and the Adjusted Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month
using such securities.
"Quotation Agent" means ________________ and its successors;
provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), ConocoPhillips shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture
Trustee after consultation with ConocoPhillips.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Debenture Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debenture Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Debenture Trustee by
such Reference Treasury Dealer as of 3:30 p.m., New York time, on the
third Business Day preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and
Common Securities are to be so redeemed, the Preferred Securities and
the Common Securities will be redeemed Pro Rata and the Preferred
Securities will be redeemed as described in Section 4(e)(ii) below,
except that if an Event of Default has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price. If a partial
redemption would result in the delisting of the Preferred Securities by
any Exchange on which the Preferred Securities are then listed or
traded, ConocoPhillips pursuant to the Indenture will redeem Debentures
only in whole and, as a result, the Trust may redeem the Preferred
Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined and each a "Special Event") shall
occur and be continuing, ConocoPhillips shall have the right at any
time [prior to __________, ____], upon not less than 30 nor more than
60 days' notice, to redeem the Debentures in whole [or] [but not] in
part for cash at the Redemption Price within 90 days following the
occurrence of such Special Event, and promptly following such
redemption, Preferred Securities and Common Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed will be redeemed by the Trust at the
Redemption
B-6
Price on a Pro Rata basis. The Common Securities will be redeemed Pro
Rata with the Preferred Securities, except that if an Event of Default
has occurred and is continuing, the Preferred Securities will have a
priority over the Common Securities with respect to payment of the
Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel experienced in such matters
to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any rules
or regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws,
rules or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any
legislation or the publication of any judicial decision or regulatory
determination), (c) any interpretation or pronouncement by any
legislative body, court, governmental agency or regulatory authority
that provides for a position with respect to such laws, rules or
regulations that differs from its previous position or a commonly
accepted position or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each
case on or after ______________, _____, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to U.S. federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by ConocoPhillips to the Trust on the Debentures is
not, or within 90 days of the date thereof will not be, deductible by
ConocoPhillips for U.S. federal income tax purposes.
"Investment Company Event" means that the Sponsor and the
Regular Trustees shall have received an Opinion of Counsel experienced
in practice under the Investment Company Act that, as a result of the
occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
Investment Company Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which
Change in Investment Company Act Law becomes effective on or after
______________, _____.
(d) The Trust may not redeem fewer than all the outstanding
Preferred Securities unless all accumulated and unpaid Distributions
have been paid on all Preferred Securities for all [quarterly]
[semi-annual] Distribution periods terminating on or prior to the date
of redemption.
(e) (i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and the Common
Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of
Preferred Securities and Common Securities to be
B-7
redeemed or exchanged not less than 30 nor more than 60 days prior to
the date fixed for redemption or exchange thereof. For purposes of the
calculation of the date of redemption or exchange and the dates on
which notices are given pursuant to this Section 4(e)(i), a
Redemption/Distribution Notice shall be deemed to be given on the day
such notice is first mailed by first-class mail, postage prepaid, to
Holders of Preferred Securities and Common Securities. Each
Redemption/Distribution Notice shall be addressed to the Holders of
Preferred Securities and Common Securities at the address of each such
Holder appearing in the books and records of the Trust. No defect in
the Redemption/Distribution Notice or in the mailing of either thereof
with respect to any Holder shall affect the validity of the redemption
or exchange proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Securities are to be redeemed, the Preferred Securities to be
redeemed will be redeemed Pro Rata from each Holder of Preferred
Securities, it being understood that, in respect of Preferred
Securities registered in the name of and held of record by DTC (or
successor Clearing Agency) or its nominee, the Preferred Securities
will be redeemed from, and the distribution of the proceeds of such
redemption will be made to, DTC (or successor Clearing Agency) or its
nominee.
(iii) Subject to Section [9] hereof, if the Trust gives a
Redemption/Distribution Notice in respect of a redemption of Preferred
Securities as provided in this Section 4, then (A) while the Preferred
Securities are in book-entry only form, with respect to the Preferred
Securities, by 12:00 noon, New York City time, on the redemption date;
provided that ConocoPhillips has paid the Property Trustee, in
immediately available funds, a sufficient amount of cash in connection
with the related redemption or maturity of the Debentures, the Property
Trustee will deposit irrevocably with DTC (or successor Clearing
Agency) funds sufficient to pay the applicable Redemption Price with
respect to the Preferred Securities and will give DTC (or successor
Clearing Agency) irrevocable instructions and authority to pay the
Redemption Price to the Holders of the Preferred Securities and (B) if
the Preferred Securities are issued in definitive form, with respect to
the Preferred Securities and provided that ConocoPhillips has paid the
Property Trustee, in immediately available funds, a sufficient amount
of cash in connection with the related redemption or maturity of the
Debentures, the Property Trustee will pay the relevant Redemption Price
to the Holders of such Preferred Securities by check mailed to the
address of the relevant Holder appearing on the books and records of
the Trust on the redemption date or by wire transfer of immediately
available funds to an account designated by such Holder. If a
Redemption/Distribution Notice shall have been given and funds
deposited as required, if applicable, then immediately prior to the
close of business on the redemption date, Distributions will cease to
accumulate on the Preferred Securities called for redemption, such
Preferred Securities will no longer be deemed to be outstanding and all
rights of Holders of such Preferred Securities so called for redemption
will cease, except the right of the Holders of such Preferred
Securities to receive the Redemption Price, but without interest on
such Redemption Price. Neither the Trustees nor the Trust shall be
required to register or cause to be registered the transfer of any
Preferred Securities which have been so called for redemption. If any
date fixed for
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redemption of Preferred Securities is not a Business Day, then payment
of the Redemption Price payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such
Business Day falls in the next calendar year, such payment will be made
on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of Preferred Securities is
improperly withheld or refused and not paid either by the Property
Trustee or by ConocoPhillips pursuant to the Preferred Securities
Guarantee, Distributions on such Preferred Securities will continue to
accumulate, from the original redemption date to the date of payment,
in which case the actual payment date will be considered the date fixed
for redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to DTC or its nominee (or any
successor Clearing Agency or its nominee) if the Global Certificates
have been issued or, if Definitive Preferred Security Certificates have
been issued, to the Holders of the Preferred Securities.
(v) Subject to the foregoing and applicable law (including,
without limitation, U.S. federal securities laws), ConocoPhillips or
any of its Affiliates may at any time and from time to time purchase
outstanding Preferred Securities by tender, in the open market or by
private agreement.
5. [CONVERSION RIGHTS. The Holders of Preferred Securities shall have
the right at any time prior to the close of business on ___________, ____ or, in
the case of Preferred Securities called for redemption, prior to the close of
business on the Business Day prior to the redemption date, at their option, to
cause the Conversion Agent to convert Preferred Securities, on behalf of the
converting Holders, into Shares in the manner described herein on and subject to
the following terms and conditions:
(a) The Preferred Securities will be convertible at the office
of the Conversion Agent maintained for such purpose in the Borough of
Manhattan, The City of New York, into fully paid and nonassessable
Shares pursuant to the Holder's direction to the Conversion Agent to
exchange such Preferred Securities for a portion of the Debentures
theretofore held by the Trust on the basis of one Preferred Security
per $______ principal amount of Debentures, and immediately convert
such amount of Debentures into fully paid and nonassessable Shares at
an initial rate of __ Shares per $_______ principal amount of
Debentures (which is equivalent to a conversion price of $___ per
Share, subject to certain adjustments set forth in the Supplemental
Indenture (as so adjusted, the "Conversion Price")).
(b) In order to convert Preferred Securities into Shares, the
Holder shall submit to the Conversion Agent at the office referred to
above an irrevocable request to convert Preferred Securities on behalf
of such Holder (the "Conversion Request"), together, if the Preferred
Securities are in certificated form, with such Preferred Security
Certificates. The Conversion Request shall (i) set forth the number of
Preferred
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Securities to be converted and the name or names, if other than the
Holder, in which the Shares should be issued and (ii) direct the
Conversion Agent (a) to exchange such Preferred Securities for a
portion of the Debentures held by the Trust (at the rate of exchange
specified in the preceding paragraph) and (b) to immediately convert
such Debentures on behalf of such Holder into Shares, subject to
certain adjustments set forth in the Supplemental Indenture (at the
conversion rate specified in the preceding paragraph). The Conversion
Agent shall notify the Trust of the Holder's election to exchange
Preferred Securities for a portion of the Debentures held by the Trust
and the Trust shall, upon receipt of such notice, deliver to the
Conversion Agent the appropriate principal amount of Debentures for
exchange in accordance with this Section. The Conversion Agent shall
thereupon notify the Sponsor of the Holder's election to convert such
Debentures into Shares. If a Preferred Security is surrendered for
conversion after the close of business on any regular record date for
payment of a Distribution and before the opening of business on the
corresponding Distribution payment date, then, notwithstanding such
conversion, the Distribution payable on such Distribution payment date
will be paid in cash to the Person in whose name the Preferred Security
is registered at the close of business on such record date, and (other
than a Preferred Security or a portion of a Preferred Security called
for redemption on a redemption date occurring after such record date
and on or prior to such Distribution payment date) when so surrendered
for conversion, the Preferred Security must be accompanied by payment
of an amount equal to the Distribution payable on such Distribution
payment date. Except as provided above, neither the Trust nor the
Sponsor will make, or be required to make, any payment, allowance or
adjustment upon any conversion on account of any accumulated and unpaid
Distributions accumulated on the Preferred Securities surrendered for
conversion, or on account of any accumulated and unpaid dividends on
the Shares issued upon such conversion, and the delivery of Shares upon
conversion of the Preferred Securities shall be deemed to constitute
full payment for all accumulated and unpaid Distributions on the
Preferred Securities. Preferred Securities shall be deemed to have been
converted immediately prior to the close of business on the day on
which a Conversion Request relating to such Preferred Securities is
received by the Trust in accordance with the foregoing provision (the
"Conversion Date"). The Person or Persons entitled to receive Shares
issuable upon conversion of the Debentures shall be treated for all
purposes as the record holder or holders of such Shares at such time.
As promptly as practicable on or after the Conversion Date, the Sponsor
shall issue the number of full Shares issuable upon such conversion to,
and shall deliver at the office of the Conversion Agent the cash
payment, if any, in lieu of any fraction of any Share for the account
of, the Person or Persons entitled to receive the same, unless
otherwise directed by the Holder in the Conversion Request. The
Conversion Agent shall distribute such cash payment, if any, to such
Person or Persons.
(c) Each Holder of a Preferred Security by his acceptance
thereof appoints The Bank of New York as the "Conversion Agent" for the
purpose of effecting the conversion of Preferred Securities in
accordance with this Section. In effecting the conversion and
transactions described in this Section, the Conversion Agent shall be
acting as agent of the Holders of Preferred Securities directing it to
effect such conversion transactions. The Conversion Agent is hereby
authorized (i) to exchange
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Preferred Securities from time to time for Debentures held by the Trust
in connection with the conversion of such Preferred Securities in
accordance with this Section and (ii) to convert all or a portion of
the Debentures into Shares and thereupon to deliver such Shares in
accordance with the provisions of this Section and to deliver to the
Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(d) No fractional Shares will be issued as a result of
conversion, but in lieu thereof, such fractional interest will be paid
by the Sponsor in cash (based upon the Closing Price (as defined in the
Indenture) of Shares on the date such Preferred Securities are
surrendered for conversion to the Trust) to the Conversion Agent, which
in turn will make such payment to the Holder or Holders of Preferred
Securities so converted, or, if such day is not a Trading Day (as
defined in the Indenture), on the next Trading Day.
(e) The Sponsor shall at all times reserve and keep available
out of its authorized and unissued common stock, par value $.01 per
share ("Common Stock"), solely for issuance upon the conversion of the
Debentures, such number of Shares as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Sponsor shall be entitled to deliver
upon conversion of Debentures Shares reacquired and held in the
treasury of the Sponsor (in lieu of the issuance of authorized and
unissued Shares), so long as any such treasury shares are free and
clear of all liens, charges, security interests or encumbrances. Any
Shares issued upon conversion of the Debentures shall be duly
authorized, validly issued, fully paid and nonassessable. The
Conversion Agent shall deliver the Shares received upon conversion of
the Debentures to the converting Holder of Preferred Securities free
and clear of all liens, charges, security interests and encumbrances,
except for United States withholding taxes. Whenever the Sponsor issues
Shares upon conversion of Debentures and the Sponsor has in effect at
such time a share purchase rights agreement under which holders of its
Common Stock are issued rights ("Rights") entitling the holders under
certain circumstances to purchase an additional share or Shares or
other capital stock of the Sponsor, the Sponsor will issue, together
with each such share of Common Stock, such number of Rights (which
number may be a fraction) as shall at that time be issuable with a
share of Common Stock pursuant to such share purchase rights agreement.
Each of the Sponsor and the Trust shall prepare and shall use its best
efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or
qualification of Shares (and all requirements to list Shares issuable
upon conversion of Debentures that are at the time applicable), in
order to enable the Sponsor to lawfully issue Shares to the Trust upon
conversion of the Debentures and the Trust to lawfully deliver Shares
to each Holder of Preferred Securities upon conversion of the Preferred
Securities.
(f) Except as otherwise provided in Section 5(e), the Sponsor
will pay any and all taxes that may be payable in respect of the issue
or delivery of Shares on conversion of Debentures and the delivery of
the Shares by the Trust upon conversion of the Preferred Securities.
The Sponsor shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery
of
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Shares in a name other than that in which the Preferred Securities so
converted were registered, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the
Conversion Agent on behalf of the Trust the amount of any such tax, or
has established to the satisfaction of the Trust that such tax has been
paid.
(g) Nothing in the preceding Section 5(f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Preferred Securities or set forth in this Exhibit B to the Declaration
or to the Declaration itself or otherwise require the Property Trustee
or the Trust to pay any amounts on account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under Section [6](b) below and
as otherwise required by law and the Declaration, the Holders of the Preferred
Securities will have no voting rights.
(b) If any proposed amendment to the Declaration provides for,
or the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the rights, privileges or preferences of the Securities in any
material respect, whether by way of amendment to the Declaration, other than as
described in Section 12.01(b) of the Declaration, or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.01 of the Declaration, then the Holders of outstanding Securities will
be entitled to vote on such amendment or proposal as a single class and such
amendment or proposal shall not be effective except with the approval of the
Holders of Securities of at least a Majority in liquidation amount of the
Securities, voting together as a single class; provided, however, that (A) if
any amendment or proposal referred to in clause (i) above would adversely affect
only the Preferred Securities or the Common Securities in any material respect,
then only the affected class of Securities will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of at least a Majority in liquidation amount of such
class of Securities and (B) amendments to the Declaration shall be subject to
such further requirements as are set forth in Sections 12.01 and 12.02 of the
Declaration.
In the event the consent of the Property Trustee, as the
holder of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided, however, that where such amendment,
modification or termination of the Indenture requires the consent or vote of (1)
holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of Debentures,
the Property Trustee may only vote with respect to that amendment, modification
or termination as directed by, in the case of clause (1) above, the vote of
Holders of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an
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Opinion of Counsel experienced in such matters to the effect that the Trust will
not be classified for U.S. federal income tax purposes as other than a grantor
trust on account of such action.
So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on the Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.04 of
the Indenture or (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures, without, in
each case, obtaining the prior approval of the Holders of a Majority in
liquidation amount of the Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities except by subsequent vote of such Holders. The Property Trustee shall
notify each Holder of Preferred Securities of any notice of default with respect
to the Debentures, unless the default has been cured before the giving of such
notice or the Property Trustee in good faith determines that the withholding of
such notice is in the interests of the Holders of the Securities in accordance
with Section 3.10(g) of the Declaration.
If an Event of Default has occurred and is continuing, then the
Holders of a Majority in liquidation amount of the Preferred Securities will
have the right, subject to Section 3.12(c)(iv) of the Declaration, to direct the
time, method and place of conducting any proceeding for any remedy available to
the Property Trustee or to direct the exercise of any trust or power conferred
upon the Property Trustee under the Declaration, including the right to direct
the Property Trustee to exercise the remedies available to it as a holder of the
Debentures. If the Property Trustee fails to enforce its rights under the
Debentures, a Holder of Preferred Securities may, to the extent permitted by
law, after a period of 30 days has elapsed since such Holder's written request
to the Property Trustee to enforce such rights, institute a legal proceeding
directly against the Sponsor to enforce the Property Trustee's rights under the
Debentures without first instituting any legal proceeding against the Property
Trustee or any other Person; provided that, if an Event of Default has occurred
and is continuing and such event is attributed to the failure of the Sponsor to
pay principal of or any premium or interest on the Debentures on the date such
amounts are otherwise payable (or in the case of redemption, on the redemption
date), then a Holder of Preferred Securities may directly institute a proceeding
for enforcement of payment to such Holder of such amounts on the Debentures
having a principal amount equal to the aggregate liquidation amount of the
Preferred Securities of such Holder (a "Holder Direct Action") on or after the
respective due date specified in the Debentures. In connection with such Holder
Direct Action, the Sponsor will be subrogated to the rights of such Holder of
Preferred Securities to the extent of any payment made by the Sponsor to such
Holders of Preferred Securities in such Holder Direct Action. Except as provided
in the preceding sentences, the Holders of Preferred Securities will not be able
to exercise directly any other remedy available to the Holders of the
Debentures.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the Declaration
in respect of the Securities.
B-13
Any required approval or direction of Holders of Preferred
Securities may be given at a separate meeting of Holders of Preferred Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Preferred Securities are entitled to vote to be
mailed to each Holder of record of Preferred Securities. Each such notice will
include a statement setting forth (i) the date of such meeting, (ii) a
description of any resolution proposed for adoption at such meeting on which
such Holders are entitled to vote and (iii) instructions for the delivery of
proxies. Any action that may be taken at a meeting of the Holders of Preferred
Securities may be taken without a meeting and without prior notice if a consent
or consents in writing setting forth the action so taken is signed by Holders of
Preferred Securities owning not less than the minimum aggregate liquidation
amount of Preferred Securities that would be necessary to authorize or take such
action at a meeting at which all Holders of Preferred Securities having a right
to vote thereon were present and voting.
No vote or consent of the Holders of Preferred Securities will
be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration or Section 3 of
this Exhibit B.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities at such time that are owned by ConocoPhillips or by
any Affiliate of ConocoPhillips shall not be entitled to vote or consent and
shall, for purposes of such vote or consent, be treated as if they were not
outstanding.
Holders of the Preferred Securities have no rights to increase
or decrease the number of Trustees or to appoint, remove or replace a Trustee,
which voting rights are vested exclusively in the Holders of the Common
Securities.
7. PRO RATA TREATMENT. A reference in these terms of the Preferred
Securities to any payment, Distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. RANKING. The Preferred Securities rank pari passu and payment
thereon will be made Pro Rata with the Common Securities, except that when an
Event of Default occurs and is continuing, the rights of Holders of Preferred
Securities to payment in respect of Distributions and payments upon liquidation,
redemption or otherwise rank in priority to the rights of Holders of the Common
Securities.
B-14
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
payments on redemption of the Preferred Securities will be payable, the transfer
of the Preferred Securities will be registrable, and Preferred Securities will
be exchangeable for Preferred Securities of other denominations of a like
aggregate liquidation amount, at the corporate trust office of the Property
Trustee in The City of New York; provided that payment of Distributions may be
made at the option of the Regular Trustees on behalf of the Trust by check
mailed to the address of the persons entitled thereto or by wire transfer of
immediately available funds to an account designated by such Holder and that the
payment on redemption of any Preferred Security will be made only upon surrender
of such Preferred Security to the Property Trustee.
10. ACCEPTANCE OF INDENTURE AND PREFERRED SECURITIES GUARANTEE. Each
Holder of Preferred Securities, by the acceptance thereof, agrees to the
provisions of (i) the Preferred Securities Guarantee, including the
subordination provisions therein, and (ii) the Indenture and the Debentures,
including the subordination provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Preferred Securities shall
have no preemptive or similar rights to subscribe to any additional Preferred
Securities or any Common Securities.
12. MISCELLANEOUS. These Terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Preferred Securities without charge on written request to the
Trust at its principal place of business.
13. GOVERNING LAW. The Preferred Securities shall be governed by and
interpreted in accordance with the laws of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to any principles of
conflict of laws thereof that would result in the application of the laws of any
other jurisdiction.
B-15
Annex I
FORM OF PREFERRED SECURITY CERTIFICATE
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE INSERT
- - THIS PREFERRED SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
DECLARATION HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITORY TRUST COMPANY ("DTC") OR A NOMINEE OF DTC. THIS PREFERRED SECURITY IS
EXCHANGEABLE FOR PREFERRED SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN DTC OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION AND NO TRANSFER OF THIS PREFERRED SECURITY (OTHER THAN A TRANSFER OF
THIS PREFERRED SECURITY AS A WHOLE BY DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF
DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS PREFERRED SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (55 WATER STREET, NEW YORK, NEW YORK) TO CONOCOPHILLIPS
TRUST [I] [II] OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY PREFERRED SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Certificate Number Number of Preferred Securities: ____________
____________
Aggregate Liquidation Amount: $____________
CUSIP NO. ____________
Certificate Evidencing Preferred Securities
of
ConocoPhillips Trust [I] [II]
____% [[Convertible] Trust Preferred Securities]
(liquidation amount $___ per Preferred Security)
B-16
ConocoPhillips Trust [I] [II], a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that _________
(the "Holder") is the registered owner of _____ (______) preferred securities of
the Trust representing preferred undivided beneficial interests in the assets of
the Trust and designated the ___% [[Convertible] Trust Preferred Securities]
(liquidation amount $____ per preferred security) (the "Preferred Securities").
The Preferred Securities are transferable on the books and records of the Trust,
in person or by a duly authorized attorney, upon surrender of this Certificate
duly endorsed and in proper form for transfer. The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this Certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Declaration of Trust of
the Trust dated as of ______________, _____, as the same may be amended from
time to time (the "Declaration"), including the designation of the terms of
Preferred Securities as set forth in Exhibit B thereto. The Preferred Securities
and the Common Securities issued by the Trust pursuant to the Declaration
represent undivided beneficial interests in the assets of the Trust, including
the Debentures (as defined in the Declaration) issued by ConocoPhillips, a
Delaware corporation ("ConocoPhillips"), to the Trust pursuant to the Indenture
referred to in the Declaration. The Holder is entitled to the benefits of the
Guarantee Agreement of ConocoPhillips dated as of ______________, _____, as the
same may be amended from time to time (the "Guarantee") to the extent provided
therein. The Trust will furnish a copy of the Declaration, the Guarantee and the
Indenture to the Holder without charge upon written request to the Trust at its
principal place of business.
The Holder of this Certificate, by accepting this Certificate,
is deemed to have (i) agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture, and (ii) agreed to the terms of the Guarantee, including that the
Guarantee is (A) subordinate and junior in right of payment to [all other
liabilities of ConocoPhillips, including the Debentures, except those made pari
passu or subordinate by their terms], and (B) senior to [all capital stock now
or hereafter issued by ConocoPhillips and to any guarantee now or hereafter
entered into by ConocoPhillips in respect of any of its capital stock].
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
This Certificate shall be governed by and interpreted in
accordance with the laws of the State of Delaware without regard to any
principles of conflict of laws thereof that would result in the application of
the laws of any other jurisdiction.
B-17
IN WITNESS WHEREOF, the undersigned Regular Trustees of the
Trust have executed this Certificate on behalf of the Trust.
CONOCOPHILLIPS TRUST [I] [II]
By: _________________________, as Regular Trustee
Name:
Title: Regular Trustee
By: _________________________, as Regular Trustee
Name:
Title: Regular Trustee
Dated:
Countersigned and Registered:
THE BANK OF NEW YORK,
as Transfer Agent and Registrar
By:___________________________
Authorized Signatory
B-18
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be fixed
at a rate per annum of ____% (the "Coupon Rate") of the stated liquidation
amount of $___ per Preferred Security, such rate being the rate of interest
payable on the Debentures to be held by the Property Trustee. Distributions in
arrears for more than one calendar quarter will accumulate additional
distributions thereon at the Coupon Rate per annum (to the extent permitted by
applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
Distributions on the Preferred Securities will accumulate from
______________, ____ and will be payable [quarterly] [semi-annually] in arrears,
on [_____________, ____________,] _____________ and _____________ of each year,
commencing on _____________, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures,
ConocoPhillips has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
of the Debentures at any time and from time to time for a period not exceeding
[20] [10] consecutive [quarterly] [semi-annual] interest periods (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures. As a consequence of such deferral, Distributions
shall also be deferred. Despite such deferral, Distributions will continue to
accumulate on the Preferred Securities with additional distributions thereon (to
the extent permitted by applicable law but not at a rate greater than the rate
at which interest is then accruing on the Debentures) at the Coupon Rate
compounded [quarterly] [semi-annually] during any such Extension Period. No
Extension Period shall extend beyond the stated maturity of the Debentures.
Prior to the termination of any such Extension Period, ConocoPhillips may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[20] [10] consecutive [quarterly] [semi-annual] interest periods or extend
beyond the stated maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, ConocoPhillips may
commence a new Extension Period, subject to the foregoing provisions. On the
first Distribution payment date following the end of an Extension Period,
payments of accumulated Distributions will be payable to Holders of Preferred
Securities as they appear on the books and records of the Trust (regardless of
who the Holders may have been on other dates during the Extension Period) on the
record date for such Distribution payment date.
B-19
The Preferred Securities shall be redeemable as provided in the
Declaration. [The Preferred Securities shall be convertible into Shares (as
defined in the Declaration), through (i) the exchange of Preferred Securities
for a portion of the Debentures and (ii) the immediate conversion of such
Debentures into Shares, in the manner and according to the terms set forth in
the Declaration.]
B-20
[CONVERSION REQUEST
To: The Bank of New York, as Conversion Agent
for ConocoPhillips Trust [I] [II]
The undersigned owner of these Preferred Securities hereby
irrevocably exercises the option to convert these Preferred Securities, or the
portion below designated, into Shares (as that term is defined in the Amended
and Restated Declaration of Trust, dated as of ______, ____ (as amended from
time to time, the "Declaration"), by _________, ________ and __________ as
Regular Trustees, The Bank of New York (Delaware), as the Delaware Trustee, The
Bank of New York, as the Property Trustee, ConocoPhillips, as Sponsor, and the
Holders, from time to time, of undivided beneficial interests in the assets of
the Trust to be issued pursuant to the Declaration) in accordance with and
subject to the terms and conditions of the Declaration. Pursuant to the
aforementioned exercise of the option to convert these Preferred Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Preferred Securities for a portion of the
Debentures (as that term is defined in the Declaration) held by ConocoPhillips
Trust [I] [II] (at the rate of exchange specified in the terms of the Preferred
Securities set forth as Exhibit B to the Declaration) and (ii) immediately
convert such Debentures on behalf of the undersigned into Shares (at the
conversion rate specified in the terms of the Preferred Securities set forth as
Exhibit B to the Declaration, subject to certain adjustments set forth in the
Supplemental Indenture (as that term is defined in the Declaration)).
The undersigned does also hereby direct the Conversion Agent
that the Shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the assignment
below. If Shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
B-21
Date: _______________, _____
in whole ____ in part ____
Number of Preferred Securities to be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the
spaces below the name or names in which
the Shares are to be issued, along with
the address or addresses of such person
or persons:
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
----------------------------------------
Signature (for conversion only)
Please print or type name and address,
including zip code, and social security
or other identifying number
----------------------------------------
----------------------------------------
----------------------------------------
Signature Guarantee:*
-------------------
- ------------------
* (Signature must be guaranteed by an "eligible guarantor institution"
that is, a bank, stockbroker, savings and loan association or credit union
meeting the requirements of the Conversion Agent, which requirements include
membership or participation in the Securities Transfer Agents Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Conversion Agent in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.)]
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Insert assignee's social security or tax identification number)
----------------------------------------------------------------
----------------------------------------------------------------
----------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
agent to
--------------------------------------------------------
transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date: _________________________
Signature: ____________________
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND
WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THIS PREFERRED SECURITY CERTIFICATE
IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
B-23
EXHIBIT C
TERMS OF
COMMON SECURITIES
Pursuant to Section 7.01(b) of the Amended and Restated
Declaration of Trust of ConocoPhillips Trust [I] [II] dated as of
______________, 200___ (as amended from time to time, the "Declaration"), the
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth below (each capitalized term
used but not defined herein having the meaning set forth in the Declaration):
1. DESIGNATION AND NUMBER. _____________ (____________) Common
Securities of the Trust with an aggregate liquidation amount at any time
outstanding with respect to the assets of the Trust of
____________________________ Dollars ($____________) [(including up to
____________ (__________) Common Securities of the Trust with an aggregate
liquidation amount with respect to the assets of the Trust of _______________
($_________) issuable upon exercise of the Over-allotment Option)], and each
with a liquidation amount with respect to the assets of the Trust of $___ per
Common Security, are hereby designated as "__% [[Convertible] Trust Common
Securities]." The Common Security Certificates evidencing the Common Securities
shall be substantially in the form attached hereto as Annex I, with such changes
and additions thereto or deletions therefrom as may be required by ordinary
usage, custom or practice. In connection with the issuance and sale of the
Preferred Securities and the Common Securities, the Trust will purchase as trust
assets Debentures of ConocoPhillips having an aggregate principal amount equal
to the aggregate liquidation amount of the Preferred Securities and the Common
Securities so issued, and bearing interest at an annual rate equal to the annual
Distribution rate on the Preferred Securities and the Common Securities and
having payment and redemption provisions which correspond to the payment and
redemption provisions of the Preferred Securities and the Common Securities.
2. DISTRIBUTIONS. (a) Distributions payable on each Common Security
will be fixed at a rate per annum of ____% (the "Coupon Rate") of the stated
liquidation amount of $___ per Common Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one calendar quarter will accumulate
additional distributions thereon at the Coupon Rate per annum (to the extent
permitted by applicable law), compounded [quarterly] [semi-annually]. The term
"Distributions" as used herein means such periodic cash distributions and any
such additional distributions payable unless otherwise stated. A Distribution
will be made by the Property Trustee only to the extent that interest payments
are made in respect of the Debentures held by the Property Trustee and to the
extent the Trust has funds on hand legally available therefor. The amount of
Distributions payable for any period will be computed for any full [quarterly]
[semi-annual] Distribution period on the basis of a 360-day year of twelve
30-day months, and for any period shorter than a full [quarterly] [semi-annual]
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per [90-day quarter]
[180-day semi-annual period].
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(b) Distributions on the Common Securities will accumulate from
______________, ____ and will be payable [quarterly] [semi-annually] in arrears,
on [_____________, ____________,] _____________ and _____________ of each year,
commencing on _____________, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures,
ConocoPhillips has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
of the Debentures at any time and from time to time for a period not exceeding
[20] [10] consecutive [quarterly] [semi-annual] interest periods (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures. As a consequence of such deferral, Distributions
shall also be deferred. Despite such deferral, Distributions will continue to
accumulate on the Common Securities with additional distributions thereon (to
the extent permitted by applicable law but not at a rate greater than the rate
at which interest is then accruing on the Debentures) at the Coupon Rate
compounded [quarterly] [semi-annually] during any such Extension Period. No
Extension Period shall extend beyond the stated maturity of the Debentures.
Prior to the termination of any such Extension Period, ConocoPhillips may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[20] [10] consecutive [quarterly] [semi-annual] interest periods or extend
beyond the stated maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, ConocoPhillips may
commence a new Extension Period, subject to the foregoing provisions. On the
first Distribution payment date following the end of an Extension Period,
payments of accumulated Distributions will be payable to Holders of Common
Securities as they appear on the books and records of the Trust (regardless of
who the Holders may have been on other dates during the Extension Period) on the
record date for such Distribution payment date.
(c) Distributions on the Common Securities will be payable
promptly by the Property Trustee (or other Paying Agent) upon receipt of
immediately available funds to the Holders thereof as they appear on the books
and records of the Trust on the relevant record dates. While the Preferred
Securities remain in book-entry only form, the relevant record dates for the
Common Securities shall be the Business Day next preceding the relevant
Distribution payment date, and if the Preferred Securities are no longer in
book-entry only form, the relevant record dates for the Common Securities will
be the close of business on the [_________, _________,] _________, and _________
next preceding the relevant Distribution payment date, which record and payment
dates correspond to the record and interest payment dates on the Debentures.
Distributions payable on any Common Securities that are not punctually paid on
any Distribution payment date as a result of ConocoPhillips' having failed to
make the corresponding payment on the Debentures will forthwith cease to be
payable to the person in whose name such Common Security is registered on the
relevant record date, and such defaulted payment will instead be payable to the
person in whose name such Common Security is registered on the special record
date established by the Regular Trustees, which record date shall correspond to
the special record date or other specified date determined in accordance with
the Indenture; provided, however, that Distributions shall not be considered
payable on any Distribution payment date falling within an Extension Period
unless ConocoPhillips has elected to make a full or partial payment of accrued
interest on the Debentures on such Distribution payment date. Subject to any
applicable laws
C-2
and regulations and the provisions of the Declaration, each payment in respect
of the Common Securities will be made as described in Section [9] hereof. If any
date on which Distributions are payable on the Common Securities is not a
Business Day, then payment of the Distribution payable on such date will be made
on the next succeeding day that is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Business Day is
in the next succeeding calendar year, such payment shall be made on the
immediately preceding Business Day, in each case with the same force and effect
as if made on the date such payment was originally payable. Notwithstanding
anything herein to the contrary, the record dates and payment dates for
Distributions shall be the same as the record dates and payment dates for the
Debentures.
(d) All Distributions paid with respect to the Preferred
Securities and the Common Securities will be paid Pro Rata (as defined below) to
the Holders thereof entitled thereto. If an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such payments.
(e) In the event that there is any money or other property held
by or for the Trust that is not accounted for under the Declaration, such money
or property shall be distributed Pro Rata among the Holders of the Preferred
Securities and the Common Securities.
[(f) In the event of an election by the Holder to convert its
Common Securities through the Conversion Agent into Shares pursuant to the terms
of the Common Securities as set forth herein, no payment, allowance or
adjustment shall be made with respect to accumulated and unpaid Distributions on
such Common Securities, or be required to be made; provided, however, that if a
Common Security is surrendered for conversion after the close of business on any
regular record date for payment of a Distribution and before the opening of
business on the corresponding Distribution payment date, then, notwithstanding
such conversion, the Distribution payable on such Distribution payment date will
be paid in cash to the person in whose name the Common Security is registered at
the close of business on such record date, and (other than a Common Security or
a portion of a Common Security called for redemption on a redemption date
occurring after such record date and on or prior to such Distribution payment
date) when so surrendered for conversion, the Common Security must be
accompanied by payment of an amount equal to the Distribution payable on such
Distribution payment date.]
3. LIQUIDATION DISTRIBUTION UPON DISSOLUTION. (a) In the event of any
voluntary or involuntary dissolution of the Trust, the Holders of the Preferred
Securities and the Common Securities will be entitled to receive Pro Rata solely
out of the assets of the Trust legally available for distribution to Holders of
Preferred Securities and Common Securities after satisfaction of liabilities to
the creditors of the Trust, an amount equal to the aggregate of the stated
liquidation amount of $___ per Preferred Security and Common Security plus
accumulated and unpaid Distributions thereon to the date of payment (such amount
being the "Liquidation Distribution"), unless, in connection with such
dissolution, and after satisfaction of liabilities to the creditors of the
Trust, Debentures in an aggregate principal amount equal to the aggregate stated
liquidation amount of the Preferred Securities and the Common Securities and
bearing accrued and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on, the Preferred Securities and the Common Securities,
shall be distributed Pro
C-3
Rata to the Holders of the Preferred Securities and the Common Securities in
exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution can
be paid only in part because the Trust has insufficient assets on hand legally
available to pay in full the aggregate Liquidation Distribution, then the
amounts payable directly by the Trust on the Preferred Securities and the Common
Securities shall be paid, subject to the next paragraph, on a Pro Rata basis.
Holders of Common Securities will be entitled to receive
Liquidation Distributions upon any such dissolution Pro Rata with Holders of
Preferred Securities, except that if an Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities with respect to such Liquidation Distribution.
(b) The Holder of the Common Securities shall have the right to
direct the Property Trustee in writing at any time to dissolve the Trust and,
after satisfaction of liabilities to creditors of the Trust, to distribute
Debentures to Holders in exchange for Securities (which direction is optional
and wholly within the discretion of the Holder of the Common Securities). Upon
the receipt of any such written direction, the Property Trustee shall promptly,
after satisfaction of liabilities to creditors of the Trust, (i) dissolve the
Trust and (ii) distribute Debentures in an aggregate principal amount equal to
the aggregate stated liquidation amount of the Preferred Securities and the
Common Securities held by each Holder, which Debentures bear accrued and unpaid
interest in an amount equal to the accumulated and unpaid Distributions on the
Preferred Securities and the Common Securities of such Holder, in exchange for
the Preferred Securities and Common Securities of such Holder.
(c) On the date fixed for any distribution of Debentures, upon
dissolution of the Trust, (i) the Common Securities will no longer be deemed to
be outstanding and may be canceled by the Regular Trustees, and (ii)
Certificates representing Common Securities will be deemed to represent
beneficial interests in the Debentures having an aggregate principal amount
equal to the stated liquidation amount of, and bearing accrued and unpaid
interest equal to accumulated and unpaid Distributions to, but excluding, the
date fixed for such distribution on, such Common Securities until such
Certificates are presented to ConocoPhillips or its agent for transfer or
reissuance.
4. REDEMPTION OF DEBENTURES. The Common Securities may be redeemed only
if Debentures having an aggregate principal amount equal to the aggregate
liquidation amount of the Preferred Securities and the Common Securities are
repaid or redeemed as set forth below:
(a) Upon the repayment of the Debentures, in whole or in part,
whether at maturity, upon redemption at any time or from time to time
[on or after _________, ____], the proceeds of such repayment will be
promptly applied to redeem Pro Rata Preferred Securities and Common
Securities having an aggregate liquidation amount equal to the
aggregate principal amount of the Debentures so repaid or redeemed,
upon not less than 30 nor more than 60 days' notice, at a redemption
price [of $______ per Preferred Security and Common Security] [equal to
the greater of (i) the liquidation
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amount of the Preferred Securities and Common Securities to be redeemed
and (ii) the Make-Whole Amount, in each case] plus an amount equal to
accumulated and unpaid Distributions thereon to, but excluding, the
date of redemption, payable in cash (the "Redemption Price"). The date
of any such repayment or redemption of Preferred Securities and Common
Securities shall be established to coincide with the repayment or
redemption date of the Debentures.
["Make-Whole Amount" shall be equal to, as determined by the
Quotation Agent, the sum of the present values, calculated as of the
redemption date, of (i) each interest payment that would have been
payable on the Debentures or portions thereof being redeemed, if such
Debentures or portions thereof were not redeemed, on each scheduled
interest payment date occurring after the redemption date (excluding
any accrued interest for the period prior to the redemption date) and
(ii) the principal amount of such Debentures or portions thereof that
would have been payable, if such Debentures or portions thereof were
not redeemed, at the scheduled maturity of such Debentures or portions
thereof being redeemed (the "Remaining Life"), in each case discounted
to the redemption date on a semiannual basis (assuming a 360-day year
consisting of 30-day months) at the Adjusted Treasury Rate plus ___
basis points for the purpose of calculating the Redemption Price.
"Adjusted Treasury Rate" means, with respect to any redemption
date, the rate per annum equal to (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 Remaining Life;
provided that if no maturity is within three months before or after the
Remaining Life, yields for the two published maturities most closely
corresponding to the Remaining Life will be determined and the Treasury
Rate will 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 such 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 such redemption date.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity date
comparable to the Remaining Life 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 Life. If no United States Treasury security has a
maturity date which is within a period from three months before to
three months after the Remaining Life, the two most closely
corresponding United States Treasury securities shall be used as the
Comparable
C-5
Treasury Issue, and the Adjusted Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest month
using such securities.
"Quotation Agent" means ________________ and its successors;
provided, however, that if the foregoing shall cease to be a primary
U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), ConocoPhillips shall substitute therefor another Primary
Treasury Dealer.
"Reference Treasury Dealer" means: (i) the Quotation Agent and
(ii) any other Primary Treasury Dealer selected by the Debenture
Trustee after consultation with ConocoPhillips.
"Comparable Treasury Price" means, with respect to any
redemption date, (i) the average of five Reference Treasury Dealer
Quotations for such redemption date, after excluding the highest and
lowest of such Reference Treasury Dealer Quotations, or (ii) if the
Debenture Trustee obtains fewer than five such Reference Treasury
Dealer Quotations, the average of all such quotations.
"Reference Treasury Dealer Quotations" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Debenture Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Debenture Trustee by
such Reference Treasury Dealer as of 3:30 p.m., New York time, on the
third Business Day preceding such redemption date.]
(b) If fewer than all the outstanding Preferred Securities and
Common Securities are to be so redeemed, the Preferred Securities and
the Common Securities will be redeemed Pro Rata and the Common
Securities will be redeemed as described in Section 4(e)(ii) below,
except that if an Event of Default has occurred and is continuing, the
Preferred Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price. If a partial
redemption would result in the delisting of the Preferred Securities by
any Exchange on which the Preferred Securities are then listed or
traded, ConocoPhillips pursuant to the Indenture will redeem Debentures
only in whole and, as a result, the Trust may redeem the Common
Securities only in whole.
(c) If, at any time, a Tax Event or an Investment Company
Event (each as hereinafter defined and each a "Special Event") shall
occur and be continuing, ConocoPhillips shall have the right at any
time [prior to __________, ____], upon not less than 30 nor more than
60 days' notice, to redeem the Debentures in whole [or] [but not] in
part for cash at the Redemption Price within 90 days following the
occurrence of such Special Event, and promptly following such
redemption, Preferred Securities and Common Securities with an
aggregate liquidation amount equal to the aggregate principal amount of
the Debentures so redeemed will be redeemed by the Trust at the
Redemption Price on a Pro Rata basis. The Common Securities will be
redeemed Pro Rata with the Preferred Securities, except that if an
Event of Default has occurred and is continuing, the
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Preferred Securities will have a priority over the Common Securities
with respect to payment of the Redemption Price.
"Tax Event" means that the Sponsor and the Regular Trustees
shall have received an Opinion of Counsel experienced in such matters
to the effect that as a result of (a) any amendment to, or change
(including any announced prospective change) in, the laws (or any rules
or regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein, (b) any amendment
to, or change in, an interpretation or application of any such laws,
rules or regulations by any legislative body, court, governmental
agency or regulatory authority (including the enactment of any
legislation or the publication of any judicial decision or regulatory
determination), (c) any interpretation or pronouncement by any
legislative body, court, governmental agency or regulatory authority
that provides for a position with respect to such laws, rules or
regulations that differs from its previous position or a commonly
accepted position or (d) any action taken by any governmental agency or
regulatory authority, which amendment or change is enacted,
promulgated, issued or announced or which interpretation or
pronouncement is issued or announced or which action is taken, in each
case on or after ______________, _____, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90 days of
the date thereof, subject to U.S. federal income tax with respect to
income accrued or received on the Debentures, (ii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de
minimis amount of taxes, duties or other governmental charges or (iii)
interest payable by ConocoPhillips to the Trust on the Debentures is
not, or within 90 days of the date thereof will not be, deductible by
ConocoPhillips for U.S. federal income tax purposes.
"Investment Company Event" means that the Sponsor and the
Regular Trustees shall have received an Opinion of Counsel experienced
in practice under the Investment Company Act that, as a result of the
occurrence of a change in law or regulation or a change in
interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
Investment Company Act Law"), there is more than an insubstantial risk
that the Trust is or will be considered an Investment Company which is
required to be registered under the Investment Company Act, which
Change in Investment Company Act Law becomes effective on or after
______________, _____.
(d) The Trust may not redeem fewer than all the outstanding
Common Securities unless all accumulated and unpaid Distributions have
been paid on all Common Securities for all [quarterly] [semi-annual]
Distribution periods terminating on or prior to the date of redemption.
(e) (i) Notice of any redemption of, or notice of distribution
of Debentures in exchange for, the Preferred Securities and the Common
Securities (a "Redemption/Distribution Notice") will be given by the
Regular Trustees on behalf of the Trust by mail to each Holder of
Preferred Securities and Common Securities to be redeemed or exchanged
not less than 30 nor more than 60 days prior to the date fixed for
redemption or exchange thereof. For purposes of the calculation of the
date of
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redemption or exchange and the dates on which notices are given
pursuant to this Section 4(e)(i), a Redemption/Distribution Notice
shall be deemed to be given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of Preferred Securities
and Common Securities. Each Redemption/Distribution Notice shall be
addressed to the Holders of Preferred Securities and Common Securities
at the address of each such Holder appearing in the books and records
of the Trust. No defect in the Redemption/Distribution Notice or in the
mailing of either thereof with respect to any Holder shall affect the
validity of the redemption or exchange proceedings with respect to any
other Holder.
(ii) In the event that fewer than all the outstanding Common
Securities are to be redeemed, the Common Securities to be redeemed
will be redeemed Pro Rata from each Holder of Common Securities
(subject to adjustment to eliminate fractional Common Securities).
(iii) If the Trust gives a Redemption/Distribution Notice in
respect of a redemption of Common Securities as provided in this
Section 4, then immediately prior to the close of business on the
redemption date; provided that ConocoPhillips has paid the Property
Trustee, in immediately available funds, a sufficient amount of cash in
connection with the related redemption or maturity of the Debentures,
Distributions will cease to accumulate on the Common Securities called
for redemption, such Common Securities will no longer be deemed to be
outstanding and all rights of Holders of such Common Securities so
called for redemption will cease, except the right of the Holders of
such Common Securities to receive the Redemption Price, but without
interest on such Redemption Price. Neither the Trustees nor the Trust
shall be required to register or cause to be registered the transfer of
any Common Securities which have been so called for redemption. If any
date fixed for redemption of Common Securities is not a Business Day,
then payment of the Redemption Price payable on such date will be made
on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if
such Business Day falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in each case with the
same force and effect as if made on such date fixed for redemption. If
payment of the Redemption Price in respect of Common Securities is
improperly withheld or refused and not paid by the Property Trustee,
Distributions on such Common Securities will continue to accumulate,
from the original redemption date to the date of payment, in which case
the actual payment date will be considered the date fixed for
redemption for purposes of calculating the Redemption Price.
(iv) Redemption/Distribution Notices shall be sent by the
Regular Trustees on behalf of the Trust to the Holders of the Common
Securities.
5. [CONVERSION RIGHTS. The Holders of Common Securities shall have the
right at any time prior to the close of business on ___________, ____ or, in the
case of Common Securities called for redemption, prior to the close of business
on the Business Day prior to the redemption date, at their option, to cause the
Conversion Agent to convert Common Securities,
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on behalf of the converting Holders, into Shares in the manner described herein
on and subject to the following terms and conditions:
(a) The Common Securities will be convertible at the office of
the Conversion Agent into fully paid and nonassessable Shares pursuant
to the Holder's direction to the Conversion Agent to exchange such
Common Securities for a portion of the Debentures theretofore held by
the Trust on the basis of one Common Security per $______ principal
amount of Debentures, and immediately convert such amount of Debentures
into fully paid and nonassessable Shares at an initial rate of __
Shares per $_______ principal amount of Debentures (which is equivalent
to a conversion price of $___ per Share, subject to certain adjustments
set forth in the Supplemental Indenture (as so adjusted, the
"Conversion Price")).
(b) In order to convert Common Securities into Shares, the
Holder shall submit to the Conversion Agent at the office referred to
above an irrevocable request to convert Common Securities on behalf of
such Holder (the "Conversion Request"), together, if the Common
Securities are in certificated form, with such Common Security
Certificates. The Conversion Request shall (i) set forth the number of
Common Securities to be converted and the name or names, if other than
the Holder, in which the Shares should be issued and (ii) direct the
Conversion Agent (a) to exchange such Common Securities for a portion
of the Debentures held by the Trust (at the rate of exchange specified
in the preceding paragraph) and (b) to immediately convert such
Debentures on behalf of such Holder into Shares, subject to certain
adjustments set forth in the Supplemental Indenture (at the conversion
rate specified in the preceding paragraph). The Conversion Agent shall
notify the Trust of the Holder's election to exchange Common Securities
for a portion of the Debentures held by the Trust and the Trust shall,
upon receipt of such notice, deliver to the Conversion Agent the
appropriate principal amount of Debentures for exchange in accordance
with this Section. The Conversion Agent shall thereupon notify the
Sponsor of the Holder's election to convert such Debentures into
Shares. If a Common Security is surrendered for conversion after the
close of business on any regular record date for payment of a
Distribution and before the opening of business on the corresponding
Distribution payment date, then, notwithstanding such conversion, the
Distribution payable on such Distribution payment date will be paid in
cash to the Person in whose name the Common Security is registered at
the close of business on such record date, and (other than a Common
Security or a portion of a Common Security called for redemption on a
redemption date occurring after such record date and on or prior to
such Distribution payment date) when so surrendered for conversion, the
Common Security must be accompanied by payment of an amount equal to
the Distribution payable on such Distribution payment date. Except as
provided above, neither the Trust nor the Sponsor will make, or be
required to make, any payment, allowance or adjustment upon any
conversion on account of any accumulated and unpaid Distributions
accumulated on the Common Securities surrendered for conversion, or on
account of any accumulated and unpaid dividends on the Shares issued
upon such conversion, and the delivery of Shares upon conversion of the
Common Securities shall be deemed to constitute full payment for all
accumulated and unpaid Distributions on the Common Securities. Common
Securities shall be deemed to have been converted
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immediately prior to the close of business on the day on which a
Conversion Request relating to such Common Securities is received by
the Trust in accordance with the foregoing provision (the "Conversion
Date"). The Person or Persons entitled to receive Shares issuable upon
conversion of the Debentures shall be treated for all purposes as the
record holder or holders of such Shares at such time. As promptly as
practicable on or after the Conversion Date, the Sponsor shall issue
the number of full Shares issuable upon such conversion to, and shall
deliver at the office of the Conversion Agent the cash payment, if any,
in lieu of any fraction of any Share for the account of, the Person or
Persons entitled to receive the same, unless otherwise directed by the
Holder in the Conversion Request. The Conversion Agent shall distribute
such cash payment, if any, to such Person or Persons.
(c) Each Holder of a Common Security by his acceptance thereof
appoints The Bank of New York as the "Conversion Agent" for the purpose
of effecting the conversion of Common Securities in accordance with
this Section. In effecting the conversion and transactions described in
this Section, the Conversion Agent shall be acting as agent of the
Holders of Common Securities directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange
Common Securities from time to time for Debentures held by the Trust in
connection with the conversion of such Common Securities in accordance
with this Section and (ii) to convert all or a portion of the
Debentures into Shares and thereupon to deliver such Shares in
accordance with the provisions of this Section and to deliver to the
Trust a new Debenture or Debentures for any resulting unconverted
principal amount.
(d) No fractional Shares will be issued as a result of
conversion, but in lieu thereof, such fractional interest will be paid
by the Sponsor in cash (based upon the Closing Price (as defined in the
Indenture) of Shares on the date such Common Securities are surrendered
for conversion to the Trust) to the Conversion Agent, which in turn
will make such payment to the Holder or Holders of Common Securities so
converted, or, if such day is not a Trading Day (as defined in the
Indenture), on the next Trading Day.
(e) The Sponsor shall at all times reserve and keep available
out of its authorized and unissued common stock, par value $.01 per
share ("Common Stock"), solely for issuance upon the conversion of the
Debentures, such number of Shares as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Sponsor shall be entitled to deliver
upon conversion of Debentures Shares reacquired and held in the
treasury of the Sponsor (in lieu of the issuance of authorized and
unissued Shares), so long as any such treasury shares are free and
clear of all liens, charges, security interests or encumbrances. Any
Shares issued upon conversion of the Debentures shall be duly
authorized, validly issued, fully paid and nonassessable. The
Conversion Agent shall deliver the Shares received upon conversion of
the Debentures to the converting Holder of Common Securities free and
clear of all liens, charges, security interests and encumbrances,
except for United States withholding taxes. Whenever the Sponsor issues
Shares upon conversion of Debentures and the Sponsor has in effect at
such time a share purchase rights agreement under which holders of its
Common Stock are issued rights ("Rights") entitling the
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holders under certain circumstances to purchase an additional share or
Shares or other capital stock of the Sponsor, the Sponsor will issue,
together with each such share of Common Stock, such number of Rights
(which number may be a fraction) as shall at that time be issuable with
a share of Common Stock pursuant to such share purchase rights
agreement. Each of the Sponsor and the Trust shall prepare and shall
use its best efforts to obtain and keep in force such governmental or
regulatory permits or other authorizations as may be required by law,
and shall comply with all applicable requirements as to registration or
qualification of Shares (and all requirements to list Shares issuable
upon conversion of Debentures that are at the time applicable), in
order to enable the Sponsor to lawfully issue Shares to the Trust upon
conversion of the Debentures and the Trust to lawfully deliver Shares
to each Holder of Common Securities upon conversion of the Common
Securities.
(f) Except as otherwise provided in Section 5(e), the Sponsor
will pay any and all taxes that may be payable in respect of the issue
or delivery of Shares on conversion of Debentures and the delivery of
the Shares by the Trust upon conversion of the Common Securities. The
Sponsor shall not, however, be required to pay any tax which may be
payable in respect of any transfer involved in the issue and delivery
of Shares in a name other than that in which the Common Securities so
converted were registered, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the
Conversion Agent on behalf of the Trust the amount of any such tax, or
has established to the satisfaction of the Trust that such tax has been
paid.
(g) Nothing in the preceding Section 5(f) shall limit the
requirement of the Trust to withhold taxes pursuant to the terms of the
Common Securities or set forth in this Exhibit C to the Declaration or
to the Declaration itself or otherwise require the Property Trustee or
the Trust to pay any amounts on account of such withholdings.]
6. VOTING RIGHTS. (a) Except as provided under Section [6](b) below and
as otherwise required by law and the Declaration, the Holders of the Common
Securities will have no voting rights.
(b) Holders of Common Securities have the sole right under the
Declaration to increase or decrease the number of Trustees, and to appoint,
remove or replace a Trustee, any such increase, decrease, appointment, removal
or replacement to be approved by Holders of Common Securities representing a
Majority in liquidation amount of the Common Securities.
If any proposed amendment to the Declaration provides for, or
the Regular Trustees otherwise propose to effect, (i) any action that would
adversely affect the rights, privileges or preferences of the Securities in any
material respect, whether by way of amendment to the Declaration, other than as
described in Section 12.01(b) of the Declaration, or otherwise, or (ii) the
dissolution, winding-up or termination of the Trust, other than as described in
Section 8.01 of the Declaration or Section 3 of this Exhibit C, then the Holders
of outstanding Securities will be entitled to vote on such amendment or proposal
as a single class and such amendment or proposal shall not be effective except
with the approval of the Holders of Securities of at least a
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Majority in liquidation amount of the Securities, voting together as a single
class; provided, however, that (A) if any amendment or proposal referred to in
clause (i) above would adversely affect only the Preferred Securities or the
Common Securities in any material respect, then only the affected class of
Securities will be entitled to vote on such amendment or proposal and such
amendment or proposal shall not be effective except with the approval of at
least a Majority in liquidation amount of such class of Securities, (B) the
rights of Holders of Common Securities under Sections 5.01 and 5.02 of the
Declaration to increase or decrease the number of, and to appoint, replace or
remove, Trustees shall not be amended without the consent of each Holder of
Common Securities, and (C) amendments to the Declaration shall be subject to
such further requirements as are set forth in Sections 12.01 and 12.02 of the
Declaration.
In the event the consent of the Property Trustee, as the holder
of the Debentures, is required under the Indenture with respect to any
amendment, modification or termination of the Indenture or the Debentures, the
Property Trustee shall request the written direction of the Holders of the
Securities with respect to such amendment, modification or termination. The
Property Trustee shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class; provided, however, that where such amendment,
modification or termination of the Indenture requires the consent or vote of (1)
holders of Debentures representing a specified percentage greater than a
majority in principal amount of the Debentures or (2) each holder of Debentures,
the Property Trustee may only vote with respect to that amendment, modification
or termination as directed by, in the case of clause (1) above, the vote of
Holders of Securities representing such specified percentage of the aggregate
liquidation amount of the Securities, or, in the case of clause (2) above, each
Holder of Securities; and provided, further, that the Property Trustee shall be
under no obligation to take any action in accordance with the directions of the
Holders of Securities unless the Property Trustee shall have received, at the
expense of the Sponsor, an Opinion of Counsel experienced in such matters to the
effect that the Trust will not be classified for U.S. federal income tax
purposes as other than a grantor trust on account of such action.
So long as any Debentures are held by the Property Trustee, the
Trustees shall not (i) direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee, or exercising any
trust or power conferred on such Debenture Trustee with respect to the
Debentures, (ii) waive any past default that is waivable under Section 6.04 of
the Indenture or (iii) exercise any right to rescind or annul a declaration of
acceleration of the maturity of the principal of the Debentures, without, in
each case, obtaining the prior approval of the Holders of a Majority in
liquidation amount of the Securities. The Trustees shall not revoke any action
previously authorized or approved by a vote of the Holders of the Common
Securities except by subsequent vote of such Holders. The Property Trustee shall
notify each Holder of Common Securities of any notice of default with respect to
the Debentures.
Notwithstanding any other provision of these terms, each
Holder of Common Securities will be deemed to have waived any Event of Default
with respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived by the
Holders of Preferred Securities as provided in the Declaration or otherwise
eliminated, and until all Events of Default with respect to the Preferred
Securities have been so cured, waived by the Holders of Preferred Securities or
otherwise eliminated, the
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Property Trustee will be deemed to be acting solely on behalf of the Holders of
Preferred Securities and only the Holders of the Preferred Securities will have
the right to direct the Property Trustee in accordance with the terms of the
Declaration or of the Securities. In the event that any Event of Default with
respect to the Preferred Securities is waived by the Holders of Preferred
Securities as provided in the Declaration, the Holders of Common Securities
agree that such waiver shall also constitute the waiver of such Event of Default
with respect to the Common Securities for all purposes under the Declaration
without any further act, vote or consent of the Holders of the Common
Securities.
A waiver of an Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities will
constitute a waiver of the corresponding Event of Default under the Declaration
in respect of the Securities.
Any required approval or direction of Holders of Common
Securities may be given at a separate meeting of Holders of Common Securities
convened for such purpose, at a meeting of all of the Holders of Securities or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote to be mailed
to each Holder of record of Common Securities. Each such notice will include a
statement setting forth (i) the date of such meeting, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote and (iii) instructions for the delivery of proxies. Any action
that may be taken at a meeting of the Holders of Common Securities may be taken
without a meeting and without prior notice if a consent or consents in writing
setting forth the action so taken is signed by Holders of Common Securities
owning not less than the minimum aggregate liquidation amount of Common
Securities that would be necessary to authorize or take such action at a meeting
at which all Holders of Common Securities having a right to vote thereon were
present and voting.
No vote or consent of the Holders of Common Securities will be
required for the Trust to redeem and cancel Common Securities or to distribute
the Debentures in accordance with the Declaration or Section 3 of this Exhibit
C.
7. PRO RATA TREATMENT. A reference in these terms of the Common
Securities to any payment, Distribution or treatment as being "Pro Rata" shall
mean pro rata to each Holder of Securities according to the aggregate
liquidation amount of the Securities held by the relevant Holder in relation to
the aggregate liquidation amount of all Securities outstanding unless, in
relation to a payment, an Event of Default has occurred and is continuing, in
which case any funds available to make such payment shall be paid first to each
Holder of the Preferred Securities pro rata according to the aggregate
liquidation amount of Preferred Securities held by the relevant Holder relative
to the aggregate liquidation amount of all Preferred Securities outstanding, and
only after satisfaction of all amounts owed to the Holders of the Preferred
Securities, to each Holder of Common Securities pro rata according to the
aggregate liquidation amount of Common Securities held by the relevant Holder
relative to the aggregate liquidation amount of all Common Securities
outstanding.
8. RANKING. The Common Securities rank pari passu and payment thereon
will be made Pro Rata with the Preferred Securities, except that when an Event
of Default occurs and is
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continuing, the rights of Holders of Common Securities to payment in respect of
Distributions and payments upon liquidation, redemption or otherwise are
subordinate to the rights of Holders of the Preferred Securities.
9. TRANSFER, EXCHANGE, METHOD OF PAYMENTS. Payment of Distributions and
payments on redemption of the Common Securities will be payable, the transfer of
the Common Securities will be registrable, and Common Securities will be
exchangeable for Common Securities of other denominations of a like aggregate
liquidation amount, at the corporate trust office of the Property Trustee in The
City of New York; provided that payment of Distributions may be made at the
option of the Regular Trustees on behalf of the Trust by check mailed to the
address of the persons entitled thereto and that the payment on redemption of
any Common Security will be made only upon surrender of such Common Security to
the Property Trustee. Notwithstanding the foregoing, transfers of Common
Securities are subject to conditions set forth in Section 9.01(c) of the
Declaration.
10. ACCEPTANCE OF INDENTURE. Each Holder of Common Securities, by the
acceptance thereof, agrees to the provisions of the Indenture and the
Debentures, including the subordination provisions of the Indenture.
11. NO PREEMPTIVE RIGHTS. The Holders of Common Securities shall have
no preemptive or similar rights to subscribe to any additional Common Securities
or any Preferred Securities.
12. MISCELLANEOUS. These Terms shall constitute a part of the
Declaration. The Trust will provide a copy of the Declaration and the Indenture
to a Holder of Common Securities without charge on written request to the Trust
at its principal place of business.
13. GOVERNING LAW. The Common Securities shall be governed by and
interpreted in accordance with the laws of the State of Delaware and all rights
and remedies shall be governed by such laws without regard to any principles of
conflict of laws thereof that would result in the application of the laws of any
other jurisdiction.
C-14
Annex I
FORM OF COMMON SECURITY CERTIFICATE
TRANSFER OF THIS CERTIFICATE
IS SUBJECT TO THE CONDITIONS
SET FORTH IN THE DECLARATION
REFERRED TO BELOW
Certificate Number Number of Preferred Securities: ____________
____________
Aggregate Liquidation Amount: $____________
CUSIP NO. ____________
Certificate Evidencing Common Securities
of
ConocoPhillips Trust [I] [II]
____% [[Convertible] Trust Common Securities]
(liquidation amount $___ per Common Security)
ConocoPhillips Trust [I] [II], a statutory trust created under
the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of
____________________________ (_________) common securities of the Trust
representing common undivided beneficial interests in the assets of the Trust
and designated the ____% [[Convertible] Trust Common Securities] (liquidation
amount $___ per common security) (the "Common Securities"). The Common
Securities are transferable on the books and records of the Trust, in person or
by a duly authorized attorney, upon surrender of this Certificate duly endorsed
and in proper form for transfer and satisfaction of the other conditions set
forth in the Declaration (as defined below) including, without limitation,
Section 9.01(c) thereof. The designations, rights, privileges, restrictions,
preferences and other terms and provisions of the Common Securities are set
forth in, and this Certificate and the Common Securities represented hereby are
issued and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Declaration of Trust of the Trust dated as of
______________, ____, as the same may be amended from time to time (the
"Declaration"), including the designation of the terms of Common Securities as
set forth in Exhibit C thereto. The Common Securities and the Preferred
Securities issued by the Trust pursuant to the Declaration represent undivided
beneficial interests in the assets of the Trust, including the Debentures (as
defined in the Declaration) issued by ConocoPhillips, a Delaware corporation
("ConocoPhillips"), to the Trust pursuant to the Indenture referred to in the
Declaration. The Trust will furnish a copy of the Declaration and the Indenture
to the Holder without charge upon written request to the Trust at its principal
place of business or registered office.
C-15
The Holder of this Certificate, by accepting this Certificate,
is deemed to have agreed to the terms of the Indenture and the Debentures,
including that the Debentures are subordinate and junior in right of payment to
all Senior Debt (as defined in the Indenture) as and to the extent provided in
the Indenture.
Upon receipt of this Certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
This Certificate shall be governed and interpreted in
accordance with the laws of the State of Delaware without regard to any
principles of conflicts of laws thereof that would result in the application of
the laws of any other jurisdiction.
IN WITNESS WHEREOF, the undersigned Regular Trustees of the
Trust have executed this Certificate on behalf of the Trust this ___ day of
_____________, ____.
CONOCOPHILLIPS TRUST [I] [II]
By: ________________________, as Regular
Trustee
Name:
Title: Regular Trustee
By: _________________________, as Regular
Trustee
Name:
Title: Regular Trustee
C-16
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of ____% (the "Coupon Rate") of the stated liquidation amount
of $___ per Common Security, such rate being the rate of interest payable on the
Debentures to be held by the Property Trustee. Distributions in arrears for more
than one calendar quarter will accumulate additional distributions thereon at
the Coupon Rate per annum (to the extent permitted by applicable law),
compounded [quarterly] [semi-annually]. The term "Distributions" as used herein
means such periodic cash distributions and any such additional distributions
payable unless otherwise stated. A Distribution will be made by the Property
Trustee only to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee and to the extent the Trust has funds on
hand legally available therefor. The amount of Distributions payable for any
period will be computed for any full [quarterly] [semi-annual] Distribution
period on the basis of a 360-day year of twelve 30-day months, and for any
period shorter than a full [quarterly] [semi-annual] Distribution period for
which Distributions are computed, Distributions will be computed on the basis of
the actual number of days elapsed per [90-day quarter] [180-day semi-annual
period].
Distributions on the Common Securities will accumulate from
______________, ____ and will be payable [quarterly] [semi-annually] in arrears,
on [_____________, ____________,] _____________ and _____________ of each year,
commencing on _____________, ____, except as otherwise described below, but only
if and to the extent that interest payments are made in respect of the
Debentures held by the Property Trustee. So long as no Indenture Event of
Default has occurred and is continuing with respect to the Debentures,
ConocoPhillips has the right under the Indenture for the Debentures to defer
payments of interest on the Debentures by extending the interest payment period
of the Debentures at any time and from time to time for a period not exceeding
[20] [10] consecutive [quarterly] [semi-annual] interest periods (each, an
"Extension Period"), during which Extension Period no interest shall be due and
payable on the Debentures. As a consequence of such deferral, Distributions
shall also be deferred. Despite such deferral, Distributions will continue to
accumulate on the Common Securities with additional distributions thereon (to
the extent permitted by applicable law but not at a rate greater than the rate
at which interest is then accruing on the Debentures) at the Coupon Rate
compounded [quarterly] [semi-annually] during any such Extension Period. No
Extension Period shall extend beyond the stated maturity of the Debentures.
Prior to the termination of any such Extension Period, ConocoPhillips may
further extend such Extension Period; provided that such Extension Period
together with all such previous and further extensions thereof may not exceed
[20] [10] consecutive [quarterly] [semi-annual] interest periods or extend
beyond the stated maturity of the Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, ConocoPhillips may
commence a new Extension Period, subject to the foregoing provisions. On the
first Distribution payment date following the end of an Extension Period,
payments of accumulated Distributions will be payable to Holders of Common
Securities as they appear on the books and records of the Trust (regardless of
who the Holders may have been on other dates during the Extension Period) on the
record date for such Distribution payment date.
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The Common Securities shall be redeemable as provided in the
Declaration. [The Common Securities shall be convertible into Shares (as defined
in the Declaration), through (i) the exchange of Common Securities for a portion
of the Debentures and (ii) the immediate conversion of such Debentures into
Shares, in the manner and according to the terms set forth in the Declaration.]
C-18
[CONVERSION REQUEST
To: The Bank of New York, as Conversion Agent
for ConocoPhillips Trust [I] [II]
The undersigned owner of these Common Securities hereby
irrevocably exercises the option to convert these Common Securities, or the
portion below designated, into Shares (as that term is defined in the Amended
and Restated Declaration of Trust, dated as of ______, ____ (as amended from
time to time, the "Declaration"), by _________, ________ and __________ as
Regular Trustees, The Bank of New York (Delaware), as the Delaware Trustee, The
Bank of New York, as the Property Trustee, ConocoPhillips, as Sponsor, and the
Holders, from time to time, of undivided beneficial interests in the assets of
the Trust to be issued pursuant to the Declaration) in accordance with and
subject to the terms and conditions of the Declaration. Pursuant to the
aforementioned exercise of the option to convert these Common Securities, the
undersigned hereby directs the Conversion Agent (as that term is defined in the
Declaration) to (i) exchange such Common Securities for a portion of the
Debentures (as that term is defined in the Declaration) held by ConocoPhillips
Trust [I] [II] (at the rate of exchange specified in the terms of the Common
Securities set forth as Exhibit C to the Declaration) and (ii) immediately
convert such Debentures on behalf of the undersigned into Shares (at the
conversion rate specified in the terms of the Common Securities set forth as
Exhibit C to the Declaration, subject to certain adjustments set forth in the
Supplemental Indenture (as that term is defined in the Declaration)).
The undersigned does also hereby direct the Conversion Agent
that the Shares issuable and deliverable upon conversion, together with any
check in payment for fractional shares, be issued in the name of and delivered
to the undersigned, unless a different name has been indicated in the assignment
below. If Shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
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Date: _______________, _____
in whole ____ in part ____
Number of Common Securities to be converted:
-----------------------
If a name or names other than the
undersigned, please indicate in the spaces
below the name or names in which the Shares
are to be issued, along with the address or
addresses of such person or persons:
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
--------------------------------------------
Signature (for conversion only)
Please print or type name and address,
including zip code, and social security or
other identifying number
--------------------------------------------
--------------------------------------------
--------------------------------------------
C-20
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security Certificate to:
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(Insert assignee's social security or tax identification number)
--------------------------------------------------------------
--------------------------------------------------------------
--------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
--------------------------------------------------------------
--------------------------------------------------------------
agent to
--------------------------------------------------------------
transfer this Common Security Certificate on the books of the Trust. The agent
may substitute another to act for him or her.
Date: ________________________
Signature: _________________________________
(Sign exactly as your name appears on the other side of this Common
Security Certificate)
C-21
Exhibit 4.9.1
CERTIFICATE OF TRUST
OF
CONOCOPHILLIPS TRUST I
THIS CERTIFICATE OF TRUST of ConocoPhillips Trust I (the "Trust"),
dated as of November 6, 2002, is being duly executed and filed by the
undersigned, as trustees, with the Secretary of State of the State of Delaware
to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code
Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust being formed hereby is
"ConocoPhillips Trust I."
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), 700 White Clay Center, Route 273, Newark, Delaware
19711.
3. Effective Date. This Certificate of Trust shall be effective at
the time of its filing with the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
more counterparts.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust at the time of filing this Certificate of Trust, have executed this
Certificate of Trust as of the date first above written pursuant to Section
3811(a) of the Act.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely as Delaware Trustee
By: /s/ William T. Lewis
--------------------------------------
William T. Lewis
Senior Vice President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Property Trustee
By: /s/ Van K. Brown
--------------------------------------
Van K. Brown
Vice President
JEFF W. SHEETS,
not in his individual capacity,
but solely as Regular Trustee
/s/ Jeff W. Sheets
--------------------------------------
Exhibit 4.9.2
CERTIFICATE OF TRUST
OF
CONOCOPHILLIPS TRUST II
THIS CERTIFICATE OF TRUST of ConocoPhillips Trust II (the "Trust"),
dated as of November 6, 2002, is being duly executed and filed by the
undersigned, as trustees, with the Secretary of State of the State of Delaware
to form a statutory trust under the Delaware Statutory Trust Act (12 Del. Code
Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust being formed hereby is
"ConocoPhillips Trust II."
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are The
Bank of New York (Delaware), 700 White Clay Center, Route 273, Newark, Delaware
19711.
3. Effective Date. This Certificate of Trust shall be effective at
the time of its filing with the Secretary of State of the State of Delaware.
4. Counterparts. This Certificate of Trust may be executed in one or
more counterparts.
IN WITNESS WHEREOF, the undersigned, being all of the trustees of
the Trust at the time of filing this Certificate of Trust, have executed this
Certificate of Trust as of the date first above written pursuant to Section
3811(a) of the Act.
THE BANK OF NEW YORK (DELAWARE),
not in its individual capacity,
but solely as Delaware Trustee
By: /s/ William T. Lewis
--------------------------------------
William T. Lewis
Senior Vice President
THE BANK OF NEW YORK,
not in its individual capacity,
but solely as Property Trustee
By: /s/ Van K. Brown
--------------------------------------
Van K. Brown
Vice President
JEFF W. SHEETS,
not in his individual capacity,
but solely as Regular Trustee
/s/ Jeff W. Sheets
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EXHIBIT 4.11
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FORM OF
CONOCOPHILLIPS
GUARANTEE AGREEMENT
CONOCOPHILLIPS TRUST [I] [II]
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DATED AS OF ________ ___, ____
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS...................................................................................1
SECTION 1.1 Definitions............................................................................1
ARTICLE II TRUST INDENTURE ACT...........................................................................5
SECTION 2.1 Trust Indenture Act; Application.......................................................5
SECTION 2.2 Lists of Holders of Preferred Securities...............................................5
SECTION 2.3 Reports by the Guarantee Trustee.......................................................5
SECTION 2.4 Periodic Reports to the Guarantee Trustee..............................................6
SECTION 2.5 Evidence of Compliance with Conditions Precedent.......................................6
SECTION 2.6 Events of Default; Waiver..............................................................6
SECTION 2.7 Disclosure of Information..............................................................6
SECTION 2.8 Conflicting Interest...................................................................7
ARTICLE III POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE............................................7
SECTION 3.1 Powers and Duties of the Guarantee Trustee.............................................7
SECTION 3.2 Certain Rights and Duties of the Guarantee Trustee.....................................8
SECTION 3.3 Not Responsible for Issuance of Guarantee.............................................10
SECTION 3.4 The Guarantee Trustee May Own Preferred Securities....................................10
SECTION 3.5 Moneys Received by the Guarantee Trustee to Be Held in Trust Without Interest.........10
SECTION 3.6 Compensation, Expenses and Indemnification of Guarantee Trustee.......................10
ARTICLE IV GUARANTEE TRUSTEE............................................................................11
SECTION 4.1 Qualifications........................................................................11
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee Trustee.........................11
ARTICLE V GUARANTEE....................................................................................12
SECTION 5.1 Guarantee.............................................................................12
SECTION 5.2 Waiver of Notice......................................................................12
SECTION 5.3 Obligations Not Affected..............................................................12
SECTION 5.4 Enforcement of Guarantee..............................................................13
SECTION 5.5 Guarantee of Payment..................................................................14
SECTION 5.6 Subrogation...........................................................................14
SECTION 5.7 Independent Obligations...............................................................14
ARTICLE VI LIMITATION OF TRANSACTIONS; SUBORDINATION....................................................14
SECTION 6.1 Limitation of Transactions............................................................14
SECTION 6.2 Subordination.........................................................................15
ARTICLE VII TERMINATION..................................................................................15
SECTION 7.1 Termination...........................................................................15
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ARTICLE VIII LIMITATION OF LIABILITY; INDEMNIFICATION.....................................................16
SECTION 8.1 Exculpation...........................................................................16
SECTION 8.2 Indemnification.......................................................................16
SECTION 8.3 Survive Termination...................................................................16
ARTICLE IX MISCELLANEOUS................................................................................17
SECTION 9.1 Successors and Assigns................................................................17
SECTION 9.2 Amendments............................................................................17
SECTION 9.3 Notices...............................................................................17
SECTION 9.4 Genders...............................................................................18
SECTION 9.5 Benefit...............................................................................18
SECTION 9.6 Governing Law.........................................................................18
SECTION 9.7 Counterparts..........................................................................18
SECTION 9.8 [Exercise of Over-allotment Option]...................................................18
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GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT, dated as of ___________, ____, is
executed and delivered by ConocoPhillips, a Delaware corporation (the
"Guarantor"), and The Bank of New York, a New York banking corporation, as the
initial Guarantee Trustee (as defined herein) for the benefit of the Holders (as
defined herein) from time to time of the Preferred Securities (as defined
herein) of ConocoPhillips Trust [I] [II], a Delaware statutory trust (the
"Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of __________, ____, among the trustees of
the Issuer named therein, ConocoPhillips, as Sponsor, and the Holders from time
to time of preferred undivided beneficial interests in the assets of the Issuer,
the Issuer may issue up to $___________ aggregate liquidation amount of its ___%
[[Convertible] Trust Preferred Securities] (the "Preferred Securities")
representing preferred undivided beneficial interests in the assets of the
Issuer and having the terms set forth in the Declaration[, of which $__________
liquidation amount of Preferred Securities is being issued as of the date
hereof. Up to the remaining $__________ liquidation amount of Preferred
Securities may be issued by the Issuer if and to the extent that the
over-allotment option granted by the Guarantor and the Issuer pursuant to the
Underwriting Agreement (as defined in the Declaration) is exercised by the
underwriters named in the Underwriting Agreement]; and
WHEREAS, as incentive for the Holders to purchase Preferred
Securities, the Guarantor desires to irrevocably and unconditionally agree, to
the extent set forth herein, to pay to the Holders the Guarantee Payments (as
defined herein) and to make certain other payments on the terms and conditions
set forth herein;
NOW, THEREFORE, in consideration of the purchase by the
initial purchasers thereof of Preferred Securities, which purchase the Guarantor
hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers
this Guarantee Agreement for the benefit of the Holders from time to time.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions.
(a) Capitalized terms used in this Guarantee Agreement but not
defined in the preamble or recitals above have the respective meanings assigned
to them in this Section 1.1.
(b) A term defined anywhere in this Guarantee Agreement has
the same meaning throughout.
(c) All references to "the Guarantee Agreement" or "this
Guarantee Agreement" are to this Guarantee Agreement as modified, supplemented
or amended from time to time.
(d) All references in this Guarantee Agreement to Articles and
Sections are to Articles and Sections of this Guarantee Agreement unless
otherwise specified.
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(e) A term defined in the Trust Indenture Act has the same
meaning when used in this Guarantee Agreement unless otherwise defined in this
Guarantee Agreement or unless the context otherwise requires.
(f) A reference to the singular includes the plural and vice
versa.
"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" of a Person shall mean 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" shall have meanings correlative to the foregoing.
"Commission" means the Securities and Exchange Commission.
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer and having the terms
set forth in the Declaration.
"Debenture Trustee" means The Bank of New York, a New York
banking corporation, as trustee under the Indenture until a successor is
appointed thereunder and thereafter means such successor trustee.
"Debentures" means the series of [convertible] unsecured
[senior] [junior] [subordinated] debentures issued to the Property Trustee by
the Guarantor under the Indenture and entitled the "___% [Convertible] [Senior]
[Junior] [Subordinated] Debentures due ____."
"Declaration" has the meaning set forth in the recitals above.
"Declaration Event of Default" means any Event of Default as
defined in the Declaration.
"Distributions" means the periodic distributions and other
payments payable to Holders in accordance with the terms of the Preferred
Securities set forth in Article 6.01 of the Declaration.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Guarantee Agreement; provided,
however, that, except with respect to a default in payment of any Guarantee
Payment, any such default shall constitute an Event of Default only if the
Guarantor shall have received notice of such default and shall not have cured
such default within 60 days after receipt of such notice.
"Extension Period" has the meaning set forth in Section ___ of
the Supplemental Indenture.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities, to
the extent not paid or made by or on behalf of the Issuer: (i) any accumulated
and unpaid Distributions and the Redemption Price, including all accumulated and
unpaid Distributions to the date of redemption, with respect to the
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Preferred Securities called for redemption by the Issuer, but only if and to the
extent that in each case the Guarantor has made a payment to the Property
Trustee of principal of, or any premium or interest on, the Debentures, and (ii)
upon a voluntary or involuntary dissolution, winding-up or termination of the
Issuer (other than in connection with the distribution of the Debentures to
Holders in exchange for Preferred Securities or the redemption of the Preferred
Securities in full upon the maturity or redemption of the Debentures as provided
in the Declaration), the lesser of (a) the aggregate of the liquidation amount
and all accumulated and unpaid Distributions on the Preferred Securities to the
date of payment, to the extent the Issuer has funds on hand legally available
therefor, and (b) the amount of assets of the Issuer remaining available for
distribution to Holders in liquidation of the Issuer as required by applicable
law.
"Guarantee Trustee" means The Bank of New York, a New York
banking corporation, until a Successor Guarantee Trustee has been appointed and
has accepted such appointment pursuant to the terms of this Guarantee Agreement,
and thereafter means each such Successor Guarantee Trustee.
"Guarantor" has the meaning set forth in the preamble above.
"Holder" means any holder, as registered on the books and
records of the Issuer, of any Preferred Securities; provided, however, that in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder, "Holder"
shall not include the Guarantor or any Affiliate of the Guarantor.
"Indemnified Person" means the Guarantee Trustee, any
Affiliate of the Guarantee Trustee, and any officers, directors, shareholders,
members, partners, employees, representatives or agents of the Guarantee
Trustee.
"Indenture" means the Indenture, dated as of _____________,
____, between ConocoPhillips and the Debenture Trustee, as supplemented by the
Supplemental Indenture.
"Issuer" has the meaning set forth in the preamble above.
"Majority in liquidation amount of the Preferred Securities"
means Holder(s) of outstanding Preferred Securities, voting together as a single
class, who are the record owners of Preferred Securities whose liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accumulated and unpaid Distributions to the date
upon which the voting percentages are determined) represents more than 50% of
the liquidation amount of all outstanding Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by any two of the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of such Person, and delivered to the Guarantee Trustee. One
of the officers signing an Officers' Certificate given pursuant to Section 2.4
shall be the principal executive, financial or accounting officer of the
Guarantor. Any Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Guarantee Agreement shall include:
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(a) a statement that each officer making such certificate has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate are based;
(c) a statement that, in the opinion of such officer, he or
she has made such examination or investigation as is necessary to
enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
officer, such condition or covenant has been complied with.
"List of Holders" has the meaning set forth in Section 2.2(a).
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
"Preferred Securities" has the meaning set forth in the
recitals above.
"Property Trustee" means the Person acting as Property Trustee
under the Declaration.
"Redemption Price" means the amount payable on redemption of
the Preferred Securities in accordance with the terms of the Preferred
Securities.
"Resignation Request" has the meaning set forth in Section
4.2(d).
"Responsible Officer" means, when used with respect to the
Guarantee Trustee, any officer within the corporate trust department of the
Guarantee Trustee, including any vice president, assistant vice president,
assistant secretary, assistant treasurer, trust officer or any other officer of
the Guarantee Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Guarantee Agreement.
"Successor Guarantee Trustee" means a successor Guarantee
Trustee possessing the qualifications to act as a Guarantee Trustee under
Section 4.1.
"Supplemental Indenture" means the _____ Supplemental
Indenture, dated as of ______________, _____, between the Guarantor and the
Debenture Trustee, or any officers' certificate or other writing under the
Indenture, in each case establishing the form and terms of the Debentures as
permitted by Section 2.01 of the Indenture.
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"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Guarantee Agreement is subject to the provisions of
the Trust Indenture Act that are required to be part of this Guarantee Agreement
and shall, to the extent applicable, be governed by such provisions.
(b) If and to the extent that any provision of this Guarantee
Agreement limits, qualifies or conflicts with the duties imposed by Sections 310
to 317, inclusive, of the Trust Indenture Act, such imposed duties shall
control.
(c) The application of the Trust Indenture Act to this
Guarantee Agreement shall not affect the nature of the Preferred Securities as
equity securities representing preferred undivided beneficial interests in the
assets of the Issuer.
SECTION 2.2 Lists of Holders of Preferred Securities.
(a) The Guarantor shall provide the Guarantee Trustee, unless
the Guarantee Trustee is registrar for the Preferred Securities, (i) on each
regular record date for payment of Distributions, a list, in such form as the
Guarantee Trustee may reasonably require, of the names and addresses of the
Holders ("List of Holders") as of such record date, and (ii) at any other time,
within 30 days of receipt by the Guarantor of a written request from the
Guarantee Trustee for a List of Holders, a List of Holders as of a date no more
than 15 days before such List of Holders is given to the Guarantee Trustee;
provided that in each case the Guarantor shall not be obligated to provide such
List of Holders at any time that the List of Holders does not differ from the
most recent List of Holders given to the Guarantee Trustee by the Guarantor. The
Guarantee Trustee shall preserve, in as current a form as is reasonably
practicable, all information contained in the Lists of Holders given to it;
provided that the Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Guarantee Trustee shall comply with its obligations
under Section 312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Guarantee Trustee.
Within 60 days after September 15 of each year, commencing
September 15, _____, the Guarantee Trustee shall deliver to the Holders such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form, in the manner and at the times provided by Section 313 of the Trust
Indenture Act. The Guarantee Trustee shall also comply with the other
requirements of Section 313 of the Trust Indenture Act. A copy of each such
report shall, at the time of such transmission to the Holders, be filed by the
Guarantee Trustee with the Guarantor, with each stock exchange, automated
quotation system or over-the-counter market upon which any Preferred Securities
are listed or traded (if so listed or traded) and also with the Commission.
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The Guarantor agrees to notify the Guarantee Trustee when any Preferred
Securities become listed or traded on any such exchange, quotation system or
market and of any delisting thereof.
SECTION 2.4 Periodic Reports to the Guarantee Trustee.
The Guarantor shall provide to the Guarantee Trustee, the
Commission and the Holders, as applicable, such documents, reports and
information (if any) as required by Section 314(a)(1)-(3) of the Trust Indenture
Act and the compliance certificates required by Section 314(a)(4) and (c) of the
Trust Indenture Act, any such certificates to be provided in the form, in the
manner and at the times required by Section 314(a)(4) and (c) of the Trust
Indenture Act; provided that any certificate to be provided pursuant to Section
314(a)(4) of the Trust Indenture Act shall be provided within 120 days of the
end of each fiscal year of the Issuer. Delivery of such reports, information and
documents to the Guarantee Trustee is for informational purposes only and the
Guarantee Trustee's receipt thereof shall not constitute constructive notice of
any information contained therein, including the Guarantor's compliance with any
of its covenants hereunder (as to which the Guarantee Trustee is entitled to
rely exclusively on Officers' Certificates or on certificates provided pursuant
to this Section 2.4).
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
The Guarantor shall provide to the Guarantee Trustee such
evidence of compliance with any conditions precedent provided for in this
Guarantee Agreement which relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any certificate or opinion required to be
given by an officer pursuant to Section 314(c) may be given in the form of an
Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of the
Preferred Securities may, by vote, on behalf of the Holders, waive any past
Event of Default and its consequences. Upon such waiver, any such Event of
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Guarantee Agreement, but
no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
(b) The right of any Holder to receive payment of the
Guarantee Payments in accordance with this Guarantee Agreement, or to institute
suit for the enforcement of any such payment, shall not be impaired without the
consent of each such Holder.
SECTION 2.7 Disclosure of Information.
The disclosure of information as to the names and addresses of
the Holders in accordance with Section 312 of the Trust Indenture Act,
regardless of the source from which such information was derived, shall not be
deemed to be a violation of any existing law, or any law hereafter enacted which
does not specifically refer to Section 312 of the Trust Indenture Act, nor shall
the Guarantee Trustee be held accountable by reason of mailing any material
pursuant to a request made under Section 312(b) of the Trust Indenture Act.
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SECTION 2.8 Conflicting Interest.
(a) The Declaration and the Indenture shall be deemed to be
specifically described in this Guarantee Agreement for the purposes of clause
(i) of the first proviso contained in Section 310(b) of the Trust Indenture Act.
(b) The Guarantee Trustee shall comply with its obligations
under Sections 310(b) and 311 of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF THE GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Guarantee Trustee.
(a) This Guarantee Agreement shall be held by the Guarantee
Trustee in trust for the benefit of the Holders. The Guarantee Trustee shall not
transfer its right, title and interest in this Guarantee Agreement to any Person
except a Successor Guarantee Trustee on acceptance by such Successor Guarantee
Trustee of its appointment to act as Guarantee Trustee or to a Holder exercising
his or her rights pursuant to Section 5.4(iv). The right, title and interest of
the Guarantee Trustee to this Guarantee Agreement shall vest automatically in
each Person who may hereafter be appointed as Guarantee Trustee in accordance
with Article IV. Such vesting and cessation of title shall be effective whether
or not conveyancing documents have been executed and delivered.
(b) If an Event of Default has occurred and is continuing, the
Guarantee Trustee shall enforce this Guarantee Agreement for the benefit of the
Holders.
(c) This Guarantee Agreement and all moneys received by the
Guarantee Trustee in respect of the Guarantee Payments will not be subject to
any right, charge, security interest, lien or claim of any kind in favor of, or
for the benefit of, the Guarantee Trustee or its agents or their creditors.
(d) The Guarantee Trustee shall, within 90 days after the
occurrence of an Event of Default actually known to a Responsible Officer of the
Guarantee Trustee, transmit by mail, first class postage prepaid, to the
Holders, as their names and addresses appear upon the List of Holders, notice of
such Event of Default, unless such Event of Default shall have been cured before
the giving of such notice; provided that the Guarantee Trustee shall be
protected in withholding such notice if and so long as a committee of
Responsible Officers of the Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders. The Guarantee
Trustee shall not be deemed to have knowledge of any Event of Default except any
Event of Default as to which the Guarantee Trustee shall have received written
notice or a Responsible Officer charged with the administration of this
Guarantee Agreement shall have obtained written notice of such Event of Default.
(e) The Guarantee Trustee shall continue to serve as a trustee
until a Successor Guarantee Trustee has been appointed and accepted that
appointment in accordance with Article IV.
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SECTION 3.2 Certain Rights and Duties of the Guarantee Trustee.
(a) The Guarantee Trustee, before the occurrence of an Event
of Default and after the curing or waiving of all Events of Default that may
have occurred, shall undertake to perform only such duties as are specifically
set forth in this Guarantee Agreement, and no implied covenants shall be read
into this Guarantee Agreement against the Guarantee Trustee. In case an Event of
Default has occurred (that has not been cured or waived pursuant to Section
2.6), the Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Guarantee Agreement, and use the same degree of care and skill in
its exercise thereof, as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) No provision of this Guarantee Agreement shall be
construed to relieve the Guarantee Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all such Events of Default that may have
occurred:
(A) the duties and obligations of the Guarantee
Trustee shall be determined solely by the express provisions
of this Guarantee Agreement, and the Guarantee Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Guarantee
Agreement, and no implied covenants or obligations shall be
read into this Guarantee Agreement against the Guarantee
Trustee; and
(B) in the absence of bad faith on the part of the
Guarantee Trustee, the Guarantee Trustee may conclusively
rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates or
opinions furnished to the Guarantee Trustee and conforming to
the requirements of this Guarantee Agreement; provided,
however, that in the case of any such certificates or opinions
that by any provision hereof or the Trust Indenture Act are
specifically required to be furnished to the Guarantee
Trustee, the Guarantee Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Guarantee Agreement or the Trust
Indenture Act, as the case may be;
(b) the Guarantee Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer of the Guarantee
Trustee, unless it shall be proved that the Guarantee Trustee was
negligent in ascertaining the pertinent facts upon which such judgment
was based;
(c) the Guarantee Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a Majority in
liquidation amount of the Preferred Securities relating to the time,
method and place of conducting any proceeding for any remedy available
to the Guarantee Trustee, or exercising any trust or power conferred
upon the Guarantee Trustee, under this Guarantee Agreement; and
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(d) no provision of this Guarantee Agreement shall require the
Guarantee Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Guarantee Agreement or adequate indemnity against such risk or
liability is not reasonably assured to it.
(c) Subject to the provisions of Section 3.2(a) and (b):
(a) whenever in the administration of this Guarantee
Agreement, the Guarantee Trustee shall deem it necessary or desirable
that a matter be proved or established prior to taking, suffering or
omitting any action hereunder, the Guarantee Trustee (unless other
evidence is herein specifically prescribed) may, in the absence of
negligence or bad faith on its part, request and conclusively rely upon
an Officers' Certificate which, upon receipt of such request, shall be
promptly delivered by the Guarantor; and such Officers' Certificate, in
the absence of negligence or bad faith on the part of the Guarantee
Trustee, shall be full warrant to the Guarantee Trustee for any action
taken, suffered or omitted under the provisions of this Guarantee
Agreement upon the faith thereof;
(b) the Guarantee Trustee (A) may consult with counsel (which
may be counsel to the Guarantor or any of its Affiliates and may
include any of its employees) selected by it in good faith and with due
care and the advice or opinion of such counsel with respect to legal
matters 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 and in accordance with such advice
and opinion and (B) shall have the right at any time to seek
instructions concerning the administration of this Guarantee Agreement
from any court of competent jurisdiction;
(c) the Guarantee Trustee may exercise any of the trusts or
powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys, and the Guarantee Trustee shall not be
responsible for any misconduct or negligence on the part of any agent
or attorney appointed by it in good faith and with due care;
(d) the Guarantee Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Guarantee
Agreement at the request or direction of any Holder, unless such Holder
shall have offered to the Guarantee Trustee security and indemnity
satisfactory to the Guarantee Trustee against the costs, expenses
(including attorneys' fees and expenses) and liabilities that might be
incurred by it in complying with such request or direction; provided
that nothing contained in this clause (iv) shall relieve the Guarantee
Trustee of the obligation, upon the occurrence of an Event of Default
(which has not been cured or waived) to exercise such of the rights and
powers vested in it by this Guarantee Agreement, and to use the same
degree of care and skill in this exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's
own affairs; and
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(e) any action taken by the Guarantee Trustee or its agents
hereunder shall bind the Holders, and the signature of the Guarantee
Trustee or its agents alone shall be sufficient and effective to
perform any such action; and no third party shall be required to
inquire as to the authority of the Guarantee Trustee to so act, or as
to its compliance with any of the terms and provisions of this
Guarantee Agreement, both of which shall be conclusively evidenced by
the Guarantee Trustee's or its agent's taking such action.
SECTION 3.3 Not Responsible for Issuance of Guarantee.
The Guarantee Trustee makes no representations as to the
validity or sufficiency of this Guarantee Agreement.
SECTION 3.4 The Guarantee Trustee May Own Preferred Securities.
The Guarantee Trustee, in its individual or any other
capacity, may become the owner or pledgee of Preferred Securities and, subject
to the provisions of Section 4.1, may otherwise deal with the Guarantor with the
same rights it would have if it were not the Guarantee Trustee.
SECTION 3.5 Moneys Received by the Guarantee Trustee to Be Held in
Trust Without Interest.
All moneys received by the Guarantee Trustee in respect of
Guarantee Payments shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated
from other funds except to the extent required by law. The Guarantee Trustee
shall be under no liability for interest on any moneys received by it hereunder
except such as it may agree in writing to pay thereon.
SECTION 3.6 Compensation, Expenses and Indemnification of Guarantee
Trustee.
The Guarantor covenants and agrees to pay to the Guarantee
Trustee from time to time, and the Guarantee Trustee shall be entitled to, such
compensation as the Guarantor and the Guarantee Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard
to the compensation of a Guarantee Trustee of an express trust) for all services
rendered by it in the execution of the trusts hereby created and in the exercise
and performance of any of the powers and duties hereunder of the Guarantee
Trustee, and the Guarantor will pay or reimburse the Guarantee Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by the Guarantee Trustee in accordance with any of the provisions of this
Guarantee Agreement (including the reasonable compensation and the reasonable
expenses and disbursements of its counsel and of all persons not regularly in
its employ) except any such expense, disbursement or advance as may arise from
its negligence or bad faith. The Guarantor also covenants to indemnify each of
the Guarantee Trustee or any predecessor Guarantee Trustee and their officers,
agents, directors and employees for, and to hold them harmless against, any and
all loss, liability, damage, claim or expense, including taxes (other than taxes
based upon, measured by or determined by the income, profit or franchise of or
doing business by the Guarantee Trustee), incurred without negligence or bad
faith on the part of the Guarantee Trustee and arising out of or in connection
with the acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself against any claim
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(whether asserted by the Guarantor, any Holder or any other Person) of liability
in the premises. The provisions of this Section 3.6 shall survive the
termination of this Guarantee Agreement and resignation or removal of the
Guarantee Trustee.
ARTICLE IV
GUARANTEE TRUSTEE
SECTION 4.1 Qualifications.
There shall at all times be a Guarantee Trustee that shall:
(a) not be an Affiliate of the Guarantor; and
(b) be a corporation or national banking association organized
and doing business under the laws of the United States of America or
any State or Territory thereof or of the District of Columbia, or a
corporation, national banking association or Person permitted by the
Commission to act as an institutional trustee under the Trust Indenture
Act, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $50,000,000, and
subject to supervision or examination by U.S. federal, state,
territorial or District of Columbia authority. If such corporation or
national banking association publishes reports of condition at least
annually, pursuant to law or to the requirements of the supervising or
examining authority referred to above, then for the purposes of this
clause (ii), 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.
If at any time the Guarantee Trustee shall cease to satisfy
the requirements of clauses (i) and (ii) above, the Guarantee Trustee shall
immediately resign in the manner and with the effect set out in Section 4.2. If
the Guarantee Trustee has or shall acquire any "conflicting interest" within the
meaning of Section 310(b) of the Trust Indenture Act, the Guarantee Trustee and
the Guarantor shall in all respects comply with the provisions of Section 310(b)
of the Trust Indenture Act.
SECTION 4.2 Appointment, Removal and Resignation of the Guarantee
Trustee.
(a) Subject to Section 4.2(b), the Guarantee Trustee may be
appointed or removed without cause at any time by the Guarantor.
(b) The Guarantee Trustee shall not be removed in accordance
with Section 4.2(a) until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1 has been appointed
and has accepted such appointment by written instrument executed by such
Successor Guarantee Trustee and delivered to the Guarantor and the Guarantee
Trustee being removed.
(c) The Guarantee Trustee appointed to office shall hold
office until its successor shall have been appointed or until its removal or
resignation.
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(d) The Guarantee Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument (a "Resignation Request")
in writing signed by the Guarantee Trustee and delivered to the Guarantor, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that no such resignation of the Guarantee
Trustee shall be effective until a Successor Guarantee Trustee possessing the
qualifications to act as Guarantee Trustee under Section 4.1 has been appointed
and has accepted such appointment by instrument executed by such Successor
Guarantee Trustee and delivered to the Guarantor and the resigning Guarantee
Trustee.
(e) If no Successor Guarantee Trustee shall have been
appointed and accepted appointment as provided in this Section 4.2 within 60
days after delivery to the Guarantor of a Resignation Request or receipt of a
notice of removal by the Guarantee Trustee, the Guarantee Trustee being removed
or resigning may, at the expense of the Guarantor, petition any court of
competent jurisdiction for appointment of a Successor Guarantee Trustee. Such
court may thereupon after prescribing such notice, if any, as it may deem proper
and prescribe, appoint a Successor Guarantee Trustee.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee.
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim which the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or to the
Guarantee Trustee for remittance to the Holders or by causing the Issuer to pay
such amounts to the Holders.
SECTION 5.2 Waiver of Notice.
The Guarantor hereby waives notice of acceptance of this
Guarantee Agreement and of any liability to which it applies or may apply,
presentment, demand for payment, any right to require a proceeding first against
the Issuer or any other Person before proceeding against the Guarantor, protest,
notice of nonpayment, notice of dishonor, notice of redemption and all other
notices and demands. Notwithstanding anything to the contrary herein, the
Guarantor retains all of its rights under the Indenture to extend the interest
payment period on the Debentures and the Guarantor shall not be obligated
hereunder to make any Guarantee Payment during any Extension Period with respect
to the Distributions on the Preferred Securities.
SECTION 5.3 Obligations Not Affected.
The obligations, covenants, agreements and duties of the
Guarantor under this Guarantee Agreement shall in no way be affected or impaired
by reason of the happening from time to time of any of the following:
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(a) the release or waiver, by operation of law or otherwise,
of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the
Preferred Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer of all
or any portion of the Distributions (other than an extension of time
for payment of Distributions that result from any Extension Period),
Redemption Price, Liquidation Distribution (as defined in the
Declaration) or any other sums payable under the terms of the Preferred
Securities or the extension of time for the performance of any other
obligation under, arising out of, or in connection with, the Preferred
Securities (other than an extension of time for payment of
Distributions that result from any Extension Period);
(c) any failure, omission, delay or lack of diligence on the
part of the Guarantee Trustee or the Holders to enforce, assert or
exercise any right, privilege, power or remedy conferred on the
Guarantee Trustee or the Holders pursuant to the terms hereof or of the
Preferred Securities, respectively, or any action on the part of the
Issuer granting indulgence or extension of any kind;
(d) the voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings
affecting, the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation guaranteed
hereby or hereby incurred; or
(g) any other circumstance whatsoever that might otherwise
constitute a legal or equitable discharge or defense of a guarantor, it
being the intent of this Section 5.3 that the obligations of the
Guarantor with respect to the Guarantee Payments shall be absolute and
unconditional under any and all circumstances.
There shall be no obligation of the Guarantee Trustee or the
Holders to give notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.4 Enforcement of Guarantee.
The Guarantor and the Guarantee Trustee expressly acknowledge
and agree that (i) this Guarantee Agreement will be deposited with the Guarantee
Trustee to be held for the benefit of the Holders; (ii) the Guarantee Trustee
has the right to enforce this Guarantee Agreement on behalf of the Holders;
(iii) subject to the provisions of Section 3.2, Holders representing not less
than a Majority in liquidation amount of the Preferred Securities have the right
to direct the time, method and place of conducting any proceeding for any remedy
available to the Guarantee Trustee in respect of this Guarantee Agreement or
exercising any trust or other power conferred upon the Guarantee Trustee under
this Guarantee Agreement; and (iv) if the Guarantee Trustee fails to enforce
this Guarantee Agreement as provided in clauses (ii) and (iii)
13
above, any Holder may institute a legal proceeding directly against the
Guarantor to enforce its rights under this Guarantee Agreement, without first
instituting a legal proceeding against the Issuer, the Guarantee Trustee or any
other Person. Notwithstanding the foregoing, if the Guarantor has failed to make
a Guarantee Payment, a Holder may directly institute a proceeding against the
Guarantor for enforcement of this Guarantee Agreement for such payment without
first instituting a legal proceeding against the Issuer, the Guarantee Trustee
or any other Person.
SECTION 5.5 Guarantee of Payment.
This Guarantee Agreement creates a guarantee of payment and
not merely of collection. This Guarantee Agreement will not be discharged except
by payment of the Guarantee Payments in full (without duplication of amounts
theretofore paid by the Issuer) or upon the distribution of the Debentures to
the Holders as provided in the Declaration.
SECTION 5.6 Subrogation.
The Guarantor shall be subrogated to all (if any) rights of
the Holders against the Issuer in respect of any amounts paid to the Holders by
the Guarantor under this Guarantee Agreement; provided, however, that the
Guarantor shall not (except to the extent required by mandatory provisions of
law) be entitled to enforce or exercise any rights which it may acquire by way
of subrogation or any indemnity, reimbursement or other agreement, in all cases
as a result of payment under this Guarantee Agreement, if, at the time of any
such payment, any amounts are due and unpaid under this Guarantee Agreement. If
any amount shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for the Holders and
to pay over such amount to the Holders or to the Guarantee Trustee for
remittance to the Holders.
SECTION 5.7 Independent Obligations.
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Guarantee
Agreement notwithstanding the occurrence of any event referred to in subsections
(a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions.
So long as any Preferred Securities remain outstanding, the
Guarantor shall not (a) make any payment of principal of or any premium or
interest on, or repay, repurchase or redeem, any debt security of the Guarantor
that ranks pari passu with or junior to the Debentures in the right of payment;
(b) make any guarantee payments with respect to any guarantee by the Guarantor
of any debt securities of any of its subsidiaries if such guarantee ranks pari
passu with or junior to the Debentures in the right of payment; or (c) declare
or pay any dividends on, or redeem, purchase, acquire or make a distribution or
liquidation payment with respect to, any of the Guarantor's capital stock,
except for or as a result of (i) dividends or distributions in, or
14
options, warrants or rights to subscribe for or purchase, the Guarantor's
capital stock; (ii) any declaration of a dividend in connection with the
implementation of a stockholder's rights plan, or the issuance of the
Guarantor's capital stock under any such plan, or the redemption or repurchase
of any such rights pursuant thereto; (iii) a reclassification of the Guarantor's
capital stock or the exchange or conversion of one class or series of the
Guarantor's capital stock for or into another class or series of the Guarantor's
capital stock; (iv) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged; and (v) the
purchase or acquisition of the Guarantor's capital stock related to the issuance
of such capital stock or rights under any of the Guarantor's stock-based
compensation or benefit plans for its directors, officers or employees, any of
the Guarantor's dividend reinvestment plans or stock purchase plans, or any of
the stock-based compensation or benefit plans of any of the Guarantor's
Affiliates for such Affiliate's directors, officers or employees, if at such
time (i) the Guarantor shall be in default with respect to its Guarantee
Payments or other payment obligations hereunder, (ii) there shall have occurred
and be continuing any event of default under the Declaration or (iii) the
Guarantor shall have given notice of its election of an Extension Period and
such period, or any extension thereof, is continuing. In addition, so long as
any Preferred Securities remain outstanding, the Guarantor (1) will remain the
sole direct or indirect owner of all of the outstanding Common Securities and
shall not cause or permit the Common Securities to be transferred except to the
extent such transfer is permitted under the Declaration; provided that any
permitted successor of the Guarantor under the Indenture may succeed to the
Guarantor's direct or indirect ownership of the Common Securities, (2) will
cause the holder of the Common Securities to satisfy the requirements of Section
4.03 of the Declaration and (3) will use reasonable efforts to cause the Issuer
to continue to be treated as a grantor trust for U.S. federal income tax
purposes, except in connection with a distribution of Debentures as provided in
the Declaration.
SECTION 6.2 Subordination.
This Guarantee Agreement will constitute an unsecured
obligation of the Guarantor and will rank (i) subordinate and junior in right of
payment to [all] [other] [senior] liabilities of the Guarantor, [except those
made pari passu or subordinate by their terms,] and (ii) senior to [all capital
stock now or hereafter issued by the Guarantor] [and to any guarantee now or
hereafter entered into by the Guarantor in respect of any of its capital stock].
If a Declaration Event of Default has occurred and is
continuing under the Declaration, the rights of the holders of the Common
Securities to receive Guarantee Payments will be subordinated to the rights of
the Holders to receive Guarantee Payments.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.
This Guarantee Agreement shall terminate and be of no further
force and effect (i) upon full payment of the Redemption Price of all Preferred
Securities, (ii) upon the distribution of Debentures [, or any securities into
which such Debentures are convertible,] to Holders and
15
holders of Common Securities in exchange for all of the Preferred Securities and
Common Securities or (iii) upon full payment of the amounts payable in
accordance with the Declaration upon liquidation of the Issuer. Notwithstanding
the foregoing, this Guarantee Agreement will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must restore payment
of any sums paid with respect to the Preferred Securities or under this
Guarantee Agreement.
ARTICLE VIII
LIMITATION OF LIABILITY; INDEMNIFICATION
SECTION 8.1 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Holder for any loss,
damage or claim incurred by reason of any act or omission performed or omitted
by such Indemnified Person in good faith in accordance with this Guarantee
Agreement and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Guarantee Agreement or by law, except that an Indemnified Person shall be liable
for any such loss, damage or claim incurred by reason of such Indemnified
Person's negligence or willful misconduct with respect to such acts or
omissions.
(b) An Indemnified Person shall be fully protected in relying
in good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value or amount of the assets,
liabilities, profits, losses or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders might properly be paid.
SECTION 8.2 Indemnification.
To the fullest extent permitted by applicable law, the
Guarantor shall indemnify and hold harmless each Indemnified Person from and
against any loss, liability, expense, damage or claim incurred by such
Indemnified Person arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder or by reason of any act or
omission performed or omitted by such Indemnified Person in good faith in
accordance with this Guarantee Agreement and in a manner such Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Indemnified Person by this Guarantee Agreement, except that no Indemnified
Person shall be entitled to be indemnified in respect of any loss, liability,
expense, damage or claim incurred by such Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions.
SECTION 8.3 Survive Termination.
The provisions of Sections 8.1 and 8.2 shall survive the
termination of this Guarantee Agreement or the resignation or removal of the
Guarantee Trustee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns.
All guarantees and agreements contained in this Guarantee
Agreement shall bind the successors, assignees, receivers, trustees and
representatives of the Guarantor and shall inure to the benefit of the Guarantee
Trustee and the Holders then outstanding. The Guarantor shall not assign its
obligations hereunder except in connection with a consolidation or merger
involving, or a sale, lease, transfer or other disposition of all or
substantially all of the assets of, the Guarantor that is permitted under
Section 5.01 of the Indenture.
SECTION 9.2 Amendments.
Except with respect to any changes which do not adversely
affect the rights of Holders in any material respect (in which case no consent
of Holders will be required), this Guarantee Agreement may only be amended with
the prior approval of the Guarantor, the Guarantee Trustee and the Holders of a
Majority in liquidation amount of the Preferred Securities. The provisions of
Section 12.02 of the Declaration concerning meetings of Holders shall apply to
the giving of such approval.
SECTION 9.3 Notices.
Any notice, request or other communication required or
permitted to be given hereunder shall be in writing, duly signed by the party
giving such notice, request or communication, and delivered, telecopied or
mailed by first class mail as follows:
(a) if given to the Guarantor, to the address set forth below
or such other address as the Guarantor may give notice of to the
Guarantee Trustee:
ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Attention: General Counsel
Telephone: (281) 293-1000
Facsimile: (281) 293-1600
(b) if given to the Guarantee Trustee, to the address set
forth below or such other address as the Guarantee Trustee may give
notice of to the Guarantor:
The Bank of New York
101 Barclay Street, Floor 8W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-5498
Facsimile: (212) 815-5707
17
(c) if given to any Holder, at the address set forth on the
books and records of the Issuer.
All notices shall be deemed to have been given when (i)
received in person, (ii) telecopied with receipt confirmed or (iii) received if
mailed by first class mail, postage prepaid, except that if a notice or other
document is refused delivery or cannot be delivered because of a changed address
of which no notice was given, such notice or other document shall be deemed to
have been delivered on the date of such refusal or inability to deliver.
SECTION 9.4 Genders.
The masculine, feminine and neuter genders used herein shall
include the masculine, feminine and neuter genders.
SECTION 9.5 Benefit.
This Guarantee Agreement is solely for the benefit of the
Guarantee Trustee and the Holders and, subject to Section 3.1(a), is not
separately transferable from the Preferred Securities.
SECTION 9.6 Governing Law.
THIS GUARANTEE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS THEREOF THAT WOULD RESULT IN THE
APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION).
SECTION 9.7 Counterparts.
This Guarantee Agreement may be executed in multiple
counterparts, each of which shall be an original; but all such counterparts
shall together constitute one and the same instrument.
SECTION 9.8 [Exercise of Over-allotment Option.
If and to the extent that Preferred Securities are issued by
the Issuer upon exercise of the over-allotment option referred to in the first
recital to this Guarantee Agreement, the Guarantor agrees to give prompt notice
thereof to the Guarantee Trustee, but the failure to give such notice shall not
relieve the Guarantor of any of its obligations hereunder.]
18
THIS GUARANTEE AGREEMENT is executed as of the day and year
first above written.
CONOCOPHILLIPS
By:
----------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Guarantee Trustee
By:
----------------------------------
Name:
Title:
19
EXHIBIT 5.1
[BAKER BOTTS L.L.P. LETTERHEAD]
November 13, 2002
001349.0276
ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-3 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission (the "Commission") by ConocoPhillips, a Delaware corporation
("ConocoPhillips"), Conoco Inc., a Delaware corporation ("Conoco"), Phillips
Petroleum Company, a Delaware corporation ("Phillips"), and ConocoPhillips Trust
I and ConocoPhillips Trust II, each a statutory Delaware trust (the "Trusts"),
under the Securities Act of 1933, as amended (the "Act"), relating to securities
to be issued and sold by ConocoPhillips, Conoco, Phillips and the Trusts from
time to time pursuant to Rule 415 under the Act for an aggregate initial
offering price not to exceed $5,000,000,000, certain legal matters in connection
with such securities are being passed upon for you by us. Such securities
include (a) ConocoPhillips' unsecured senior debt securities (the "Senior Debt
Securities") fully and unconditionally guaranteed by Conoco and Phillips (the
"Senior Debt Guarantees"); (b) ConocoPhillips' unsecured subordinated debt
securities (the "Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"); (c) shares of common stock, par value
$.01 per share, of ConocoPhillips ("Common Stock"); (d) shares of preferred
stock, par value $.01 per share, of ConocoPhillips ("Preferred Stock"); (e)
warrants to purchase other securities ("Warrants"); (f) depositary shares
representing Preferred Stock ("Depositary Shares"); (g) stock purchase contracts
of ConocoPhillips ("Stock Purchase Contracts"); (h) stock purchase units of
ConocoPhillips, consisting of (1) a Stock Purchase Contract and (2) a beneficial
interest in Senior Debt Securities, Subordinated Debt Securities, Trust
Securities (as defined below) or debt obligations of third parties securing the
holder's obligation to purchase Common Stock or Preferred Stock under the Stock
Purchase Contracts ("Stock Purchase Units"); (i) preferred securities of the
Trusts (the "Trust Securities"); and (j) ConocoPhillips' guarantees with respect
to the Trust Securities (the "Trust Guarantees"). The Debt Securities, Senior
Debt Guarantees, Common Stock, Preferred Stock, Warrants, Depositary Shares,
Stock Purchase Contracts, Stock Purchase Units and Trust Guarantees are
collectively referred to herein as the "Securities."
Each series of Senior Debt Securities and the related Senior
Debt Guarantees will be issued pursuant to the Indenture, dated as of October 9,
2002 (the "Senior Indenture"), among ConocoPhillips, as issuer, Conoco and
Phillips, as guarantors, and The Bank of New York, as trustee, and each series
of Subordinated Debt Securities will be issued pursuant to an indenture to be
entered into between ConocoPhillips, as issuer, and The Bank of New York, as
trustee (the "Subordinated Indenture" and, together with the Senior Indenture,
the "Indentures"), as each such Indenture will be supplemented, in connection
with the issuance of each such series, by a
BAKER BOTTS L.L.P.
ConocoPhillips 2 November 13, 2002
supplemental indenture, officers' certificate or other writing thereunder
establishing the form and terms of such series. Each Trust Guarantee will be
issued pursuant to a guarantee agreement to be entered into between the Company
and The Bank of New York, as guarantee trustee thereunder (each, a "Guarantee
Agreement").
In our capacity as your counsel in the connection referred to
above, we have examined ConocoPhillips' Restated Certificate of Incorporation
and Bylaws, each as amended to date (the "Charter Documents"), the Senior
Indenture, the forms of Subordinated Indenture and Guarantee Agreement (each as
filed as an exhibit to the Registration Statement), and originals, or copies
certified or otherwise identified, of corporate records of ConocoPhillips,
including minute books of ConocoPhillips as furnished to us by ConocoPhillips,
certificates of public officials and of representatives of ConocoPhillips,
statutes and other instruments and documents as a basis for the opinions
hereinafter expressed. In connection with this opinion, we have assumed that:
(a) the Registration Statement and any amendments thereto
(including post-effective amendments) will have become effective under
the Act;
(b) a prospectus supplement will have been prepared and
filed with the Commission describing the Securities offered thereby;
(c) all Securities will be offered, issued and sold in
compliance with applicable federal and state securities laws and in the
manner stated in the Registration Statement and the appropriate
prospectus supplement;
(d) the Board of Directors of ConocoPhillips or, to the
extent permitted by the General Corporation Law of the State of
Delaware and ConocoPhillips' Charter Documents, a duly constituted and
acting committee thereof (such Board of Directors or committee being
hereinafter referred to as the "Board") will have taken all necessary
corporate action to authorize the issuance of the Securities and any
other Securities issuable on the conversion, exchange, redemption or
exercise thereof, and to authorize the terms of the offering and sale
of such Securities and related matters;
(e) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered will have been duly
authorized and validly executed and delivered by ConocoPhillips and the
other parties thereto (the "Purchase Agreement");
(f) any securities issuable upon conversion, exchange,
redemption or exercise of any Securities being offered will have been
duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange, redemption or exercise;
(g) all Securities, and any certificates or Receipts (as
defined below) in respect thereof, will be delivered in accordance with
either (a) the provisions of the applicable Purchase Agreement approved
by the Board upon payment of the consideration therefor provided for
therein or (b) upon conversion, exchange, redemption
BAKER BOTTS L.L.P.
ConocoPhillips 3 November 13, 2002
or exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion, exchange, redemption or exercise as approved by the Board,
for the consideration approved by the Board;
(h) in the case of shares of Common Stock or Preferred
Stock, certificates representing such shares will have been duly
executed, countersigned, registered and delivered, or if
uncertificated, valid book-entry notations will have been made in the
share register of the Company, in each case in accordance with the
provisions of the Charter Documents; there will be sufficient shares of
Common Stock or Preferred Stock authorized under the Charter Documents
and not otherwise issued or reserved for issuance; and the purchase
price therefor payable to ConocoPhillips, or, if such shares are
issuable on the conversion, exchange, redemption or exercise of another
Security, the consideration payable to ConocoPhillips for such
conversion, exchange, redemption or exercise will not be less than the
par value of such shares, in the case of shares of Common Stock, or the
lesser of such purchase price or such consideration, as the case may
be, or the amount of such purchase price or such consideration, as the
case may be, timely determined by the Board to constitute the stated
capital applicable to such shares, in the case of shares of Preferred
Stock;
(i) in the case of shares of Preferred Stock of any
series, the Board will have taken all necessary corporate action to
designate and establish the terms of such series and will have caused a
certificate of designations respecting such series to be prepared and
filed with the Secretary of State of the State of Delaware;
(j) in the case of Warrants, the Board will have taken
all necessary corporate action to authorize the creation of and the
terms of such Warrants and the issuance of the Securities to be issued
pursuant thereto and to approve the warrant agreement relating thereto;
such warrant agreement will have been duly executed and delivered by
ConocoPhillips and the warrant agent thereunder appointed by
ConocoPhillips; neither such Warrants nor such warrant agreement will
include any provision that is unenforceable; and such Warrants or
certificates representing such Warrants will have been duly executed,
countersigned, registered and delivered in accordance with the
provisions of such warrant agreement;
(k) in the case of Depositary Shares, the Board will have
taken all necessary corporate action to establish the terms of the
Depositary Shares; the action with respect to the Preferred Stock
underlying such Depositary Shares referred to in paragraph (i) above
will have been taken; a depositary agreement (the "Depositary
Agreement") relating to the Depositary Shares and the related
depositary receipts evidencing such Depositary Shares ("Receipts") will
have been duly authorized and validly executed and delivered by
ConocoPhillips and a bank or trust company to be selected by
ConocoPhillips, as depositary (the "Depositary"), and such Depositary
Agreement and such Receipts will not include any provision that is
unenforceable; the shares of Preferred Stock underlying such Depositary
Shares will have been deposited with the Depositary under the
applicable
BAKER BOTTS L.L.P.
ConocoPhillips 4 November 13, 2002
Depositary Agreement; and the Depositary Receipts will have been duly
executed, countersigned, registered and delivered in accordance with
the appropriate Depositary Agreement;
(l) in the case of Debt Securities of any series issuable
under an Indenture:
o if such Debt Securities are Subordinated Debt
Securities, an indenture substantially in the form of
the Subordinated Indenture will have been duly
executed and delivered by ConocoPhillips and the
trustee thereunder;
o in accordance with the terms of the Indenture under
which such Debt Securities will be issued, the Board
will have taken all necessary corporate action to
designate and establish the terms of such series of
Debt Securities and such Debt Securities will not
include any provision that is unenforceable;
o the Indenture under which such Debt Securities will
be issued will have become qualified under the Trust
Indenture Act of 1939, as amended; and
o forms of Debt Securities, including, if applicable,
the related Senior Debt Guarantees, complying with
the terms of the Indenture under which such Debt
Securities will be issued and evidencing such Debt
Securities and, if applicable, the related Senior
Debt Guarantees will have been duly executed,
authenticated, issued and delivered in accordance
with the provisions of such Indenture;
(m) in the case of Trust Guarantees, the Board will have
taken all necessary corporate action to establish the terms thereof; a
guarantee agreement substantially in the form of the Guarantee
Agreement will have been duly executed and delivered by ConocoPhillips
and the trustee thereunder; such guarantee agreement will have become
qualified under the Trust Indenture Act of 1939, as amended, and will
not contain any provision that is unenforceable; and such Trust
Guarantees will have been duly issued and delivered in accordance with
the provisions of such guarantee agreement;
(n) in the case of Stock Purchase Contracts, the Board
will have taken all necessary corporate action to establish the terms
thereof and to approve the purchase contract agreement relating
thereto; such Stock Purchase Contracts and purchase contract agreement
will have been duly executed and delivered by the parties thereto; and
neither such Stock Purchase Contracts nor such purchase contract
agreement will include any provision that is unenforceable; and
(o) in the case of Stock Purchase Units, the Board will
have taken all necessary corporate action to establish the terms of
such Stock Purchase Units and the terms of the Securities, if any, such
Stock Purchase Units include; the action with respect to the Stock
Purchase Contracts included in such Stock Purchase Units referred to in
BAKER BOTTS L.L.P.
ConocoPhillips 5 November 13, 2002
paragraph (n) above will have been taken; if such Stock Purchase Units
include Trust Securities, such Trust Securities will be legal, valid
and binding obligations of the applicable Trust, enforceable against
the applicable Trust in accordance with their terms; if such Stock
Purchase Units include securities other than Securities or Trust
Securities, such other securities will have been duly and validly
executed, issued and delivered by the issuer thereof and will be legal,
valid and binding obligations of such issuer, enforceable against such
issuer in accordance with their respective terms; and no agreement or
other instrument establishing such Stock Purchase Units or defining the
rights of the holders of such Stock Purchase Units will contain any
provision that is unenforceable.
Based upon and subject to the foregoing, we are of the opinion
that:
1. The shares of Common Stock and Preferred Stock
included in the Securities will, when issued, have been duly authorized
and validly issued and will be fully paid and nonassessable.
2. The Warrants and the Depositary Shares included in
the Securities will, when issued, have been duly authorized and validly
issued.
3. The Debt Securities, Trust Guarantees, Stock Purchase
Contracts and Stock Purchase Units included in the Securities will,
when issued, constitute legal, valid and binding obligations of
ConocoPhillips, enforceable against ConocoPhillips in accordance with
their respective terms, except as that enforcement is subject to (a)
any applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other laws relating to or
affecting creditors' rights generally, (b) general principles of equity
(regardless of whether that enforceability is considered in a
proceeding in equity or at law) and (c) any implied covenants of good
faith and fair dealing.
4. Each Senior Debt Guarantee of Conoco or Phillips
relating to any Senior Debt Securities included in the Securities will,
when issued, constitute a legal, valid and binding obligation of Conoco
or Phillips, as applicable, enforceable against Conoco or Phillips, as
applicable, in accordance with its terms, except as that enforcement is
subject to (a) any applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer or conveyance or other laws relating to
or affecting creditors' rights generally, (b) general principles of
equity (regardless of whether that enforceability is considered in a
proceeding in equity or at law) and (c) any implied covenants of good
faith and fair dealing.
The opinions set forth above are limited in all respects to
matters of the contract law of the State of New York, the General Corporation
Law of the State of Delaware and applicable federal law. We hereby consent to
the filing of this opinion of counsel as Exhibit 5.1 to the Registration
Statement. We also consent to the reference to our Firm under the heading "Legal
Matters" in the prospectus forming a part of the Registration Statement. In
giving this consent, we do not hereby admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Commission thereunder.
Very truly yours,
BAKER BOTTS L.L.P.
EXHIBIT 5.2.1
Richards, Layton & Finger, P.A.
One Rodney Square
Wilmington, Delaware 19889
(302) 651-7700
November 12, 2002
ConocoPhillips Trust I
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Re: ConocoPhillips Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for ConocoPhillips,
a Delaware corporation (the "Company"), and ConocoPhillips Trust I, a Delaware
statutory trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
November 6, 2002 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on November 6, 2002;
(b) The Declaration of Trust, dated as of November 6, 2002,
among the Company, as sponsor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus") relating to
the Trust Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Trust Preferred
Security" and collectively, the "Trust Preferred Securities"), as proposed to be
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about November 12, 2002;
ConocoPhillips Trust I
November 12, 2002
Page 2
(d) A form of Amended and Restated Declaration of Trust of the
Trust, to be entered into among the Company, as sponsor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, B and C thereto)
(the "Declaration"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
November 11, 2002, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are signatories to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
that each Person to whom a Trust Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") will receive a Preferred
Security Certificate for such Trust Preferred Security and will pay for the
Trust Preferred Security acquired by it, in accordance with the Declaration and
the Registration Statement, and (vii) that the Trust Preferred Securities will
be issued and sold to the Preferred Security Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
ConocoPhillips Trust I
November 12, 2002
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws and blue sky laws of the State of Delaware), and
we have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust Act (12
Del. C. Section 3801, et seq.).
2. The Trust Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated pursuant to the Declaration to (a) pay taxes or other
governmental charges that may be imposed in connection with any transfer or
exchange of Trust Preferred Securities or the issuance of replacement Preferred
Security Certificates and (b) provide reasonable security and indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and remedies under the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARDS, LAYTON & FINGER, P.A.
BJK/LJR
EXHIBIT 5.2.2
Richards, Layton & Finger, P.A.
One Rodney Square
Wilmington, Delaware 19889
(302) 651-7700
November 12, 2002
ConocoPhillips Trust II
c/o ConocoPhillips
600 North Dairy Ashford
Houston, Texas 77079
Re: ConocoPhillips Trust II
Ladies and Gentlemen:
We have acted as special Delaware counsel for ConocoPhillips,
a Delaware corporation (the "Company"), and ConocoPhillips Trust II, a Delaware
statutory trust (the "Trust"), in connection with the matters set forth herein.
At your request, this opinion is being furnished to you.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals or
copies of the following:
(a) The Certificate of Trust of the Trust, dated as of
November 6, 2002 (the "Certificate"), as filed in the office of the Secretary of
State of the State of Delaware (the "Secretary of State") on November 6, 2002;
(b) The Declaration of Trust, dated as of November 6, 2002,
among the Company, as sponsor, and the trustees of the Trust named therein;
(c) The Registration Statement (the "Registration Statement")
on Form S-3, including a preliminary prospectus (the "Prospectus") relating to
the Trust Preferred Securities of the Trust representing preferred undivided
beneficial interests in the assets of the Trust (each, a "Trust Preferred
Security" and collectively, the "Trust Preferred Securities"), as proposed to be
filed by the Company, the Trust and others with the Securities and Exchange
Commission on or about November 12, 2002;
ConocoPhillips Trust II
November 12, 2002
Page 2
(d) A form of Amended and Restated Declaration of Trust of the
Trust, to be entered into among the Company, as sponsor, the trustees of the
Trust named therein, and the holders, from time to time, of undivided beneficial
interests in the assets of the Trust (including Exhibits A, B and C thereto)
(the "Declaration"), attached as an exhibit to the Registration Statement; and
(e) A Certificate of Good Standing for the Trust, dated
November 11, 2002, obtained from the Secretary of State.
Capitalized terms used herein and not otherwise defined are
used as defined in the Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed
(i) the authenticity of all documents submitted to us as authentic originals,
(ii) the conformity with the originals of all documents submitted to us as
copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) except to the extent provided in paragraph 1 below, that each of
the parties to the documents examined by us has been duly created, organized or
formed, as the case may be, and is validly existing in good standing under the
laws of the jurisdiction governing its creation, organization or formation,
(iii) the legal capacity of natural persons who are signatories to the documents
examined by us, (iv) that each of the parties to the documents examined by us
has the power and authority to execute and deliver, and to perform its
obligations under, such documents, (v) that each of the parties to the documents
examined by us has duly authorized, executed and delivered such documents, (vi)
that each Person to whom a Trust Preferred Security is to be issued by the Trust
(collectively, the "Preferred Security Holders") will receive a Preferred
Security Certificate for such Trust Preferred Security and will pay for the
Trust Preferred Security acquired by it, in accordance with the Declaration and
the Registration Statement, and (vii) that the Trust Preferred Securities will
be issued and sold to the Preferred Security Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
ConocoPhillips Trust II
November 12, 2002
Page 3
This opinion is limited to the laws of the State of Delaware
(excluding the securities laws and blue sky laws of the State of Delaware), and
we have not considered and express no opinion on the laws of any other
jurisdiction, including federal laws and rules and regulations relating thereto.
Our opinions are rendered only with respect to Delaware laws and rules,
regulations and orders thereunder that are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly existing in
good standing as a statutory trust under the Delaware Statutory Trust Act (12
Del. C. Section 3801, et seq.).
2. The Trust Preferred Securities will represent valid and,
subject to the qualifications set forth in paragraph 3 below, fully paid and
nonassessable undivided beneficial interests in the assets of the Trust.
3. The Preferred Security Holders, as beneficial owners of the
Trust, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the Preferred Security
Holders may be obligated pursuant to the Declaration to (a) pay taxes or other
governmental charges that may be imposed in connection with any transfer or
exchange of Trust Preferred Securities or the issuance of replacement Preferred
Security Certificates and (b) provide reasonable security and indemnity in
connection with requests of or directions to the Property Trustee to exercise
its rights and remedies under the Declaration.
We consent to the filing of this opinion with the Securities
and Exchange Commission as an exhibit to the Registration Statement. In
addition, we hereby consent to the use of our name under the heading "Legal
Matters" in the Prospectus. In giving the foregoing consents, we do not thereby
admit that we come within the category of Persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations of the Securities and Exchange Commission thereunder. Except as
stated above, without our prior written consent, this opinion may not be
furnished to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ RICHARD, LAYTON & FINGER, P.A.
BJK/LJR
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 19, 2002 relating to the
consolidated financial statements, which appears in Conoco Inc.'s Current Report
on Form 8-K dated February 25, 2002 and Conoco Inc.'s Annual Report on Form 10-K
for the year ended December 31, 2001, and of our report dated February 19, 2002
relating to the financial statement schedule of Conoco Inc., which appears in
Conoco Inc.'s Annual Report on Form 10-K for the year ended December 31, 2001.
We also consent to the reference to us under the heading "Experts" in such
Registration Statement.
PRICEWATERHOUSECOOPERS LLP
Houston, Texas
November 12, 2002
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in the Form
S-3 Registration Statement and related prospectus of ConocoPhillips, Conoco
Inc., Phillips Petroleum Company, ConocoPhillips Trust I and ConocoPhillips
Trust II for the registration of $5,000,000,000 of their securities and to the
incorporation by reference therein of our report dated March 15, 2002, with
respect to the consolidated financial statements and schedule of Phillips
Petroleum Company included in its Annual Report (Form 10-K) for the year ended
December 31, 2001, as amended, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Tulsa, Oklahoma
November 12, 2002
EXHIBIT 24.2
POWER OF ATTORNEY
Each person whose signature appears below appoints Robert W. Goldman,
Senior Vice President, Finance, and Chief Financial Officer of Conoco, Rick A.
Harrington, Senior Vice President, Legal, and General Counsel of Conoco, and
Sigmund L. Cornelius, Vice President and Treasurer of Conoco, and each of them,
severally, as his or her true and lawful attorney or attorneys-in-fact and agent
or agents, each of whom shall be authorized to act with or without the other,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead in his or her capacity as a director or officer or
both, as the case may be, of Conoco or ConocoPhillips or both, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and any registration statement of the type contemplated by Rule 462(b)
under the Securities Act of 1933, as amended (the "Securities Act"), and all
documents or instruments necessary or appropriate to enable Conoco and/or
ConocoPhillips to comply with the Securities Act, and to file the same with the
Securities and Exchange Commission, with full power and authority to each of
said attorneys-in-fact and agents to do and perform in the name and on behalf of
each such director or officer, or both, as the case may be, each and every act
whatsoever that is necessary, appropriate or advisable in connection with any or
all of the above-described matters and to all intents and purposes as he or she
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
/s/ Archie W. Dunham
- --------------------------------------------
Archie W. Dunham
/s/ Richard A. Auchinleck
- --------------------------------------------
Richard A. Auchinleck
/s/ Kenneth M. Duberstein
- --------------------------------------------
Kenneth M. Duberstein
/s/ Ruth R. Harkin
- --------------------------------------------
Ruth R. Harkin
/s/ Charles C. Krulak
- --------------------------------------------
Charles C. Krulak
/s/ Frank A. McPherson
- --------------------------------------------
Frank A. McPherson
/s/ William K. Reilly
- --------------------------------------------
William K. Reilly
/s/ William R. Rhodes
- --------------------------------------------
William R. Rhodes
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ J. J. Mulva
----------------------------------
J. J. Mulva, Director;
Chairman of the Board of Directors
and Chief Executive Officer;
Principal Executive Officer
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ John A. Carrig
-------------------------------------
John A. Carrig, Senior Vice President
and Chief Financial Officer;
Principal Financial Officer
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Rand C. Berney
--------------------------------------
Rand C. Berney
Vice President and Controller;
Principal Accounting Officer
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Norman R. Augustine
-------------------------------
Norman R. Augustine, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ David L. Boren
----------------------------
David L. Boren, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Larry D. Horner
-----------------------------------
Larry D. Horner, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ J. Stapleton Roy
--------------------------
J. Stapleton Roy, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
his true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Randall L. Tobias
----------------------------------
Randall L. Tobias, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
her true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for her and in her name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as she might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Victoria J. Tschinkel
-----------------------------------
Victoria J. Tschinkel, Director
Phillips Petroleum Company
Date: July 29, 2002
POWER OF ATTORNEY
The person whose signature appears below hereby authorizes and appoints
J. Bryan Whitworth, John A. Carrig and Rand C. Berney, jointly and severally, as
her true and lawful attorneys-in-fact and agent, with full power of substitution
and resubstitution, for her and in her name, place, and stead, in any and all
capacities, to sign any and all registration statements and amendments thereto
(including post-effective amendments) on Form S-3 to be filed by ConocoPhillips
and to be joined by Phillips Petroleum Company (the "Company") as a guarantor of
ConocoPhillips, as the same may be amended or supplemented, relating to
securities of ConocoPhillips, including without limitation, senior and
subordinated debt securities, equity securities (common and preferred),
depositary shares, guarantees of subsidiaries' and affiliates' preferred
securities, stock purchase contracts or units and securities exchangeable for or
convertible into securities of ConocoPhillips or third parties, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as she might or could do in person, hereby
ratifying and confirming all that each said attorney-in-fact and agent, or any
of them, or his substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
/s/ Kathryn C. Turner
---------------------------------
Kathryn C. Turner, Director
Phillips Petroleum Company
Date: July 29, 2002
EXHIBIT 25.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips
(Exact name of obligor as specified in its charter)
Delaware 01-0562944
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
----------
Senior Debt Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
---------------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
EXHIBIT 25.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips
(Exact name of obligor as specified in its charter)
Delaware 01-0562944
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
-------------
Subordinated Debt Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
----------------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
EXHIBIT 25.3.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips Trust I
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
---------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
EXHIBIT 25.3.2
========================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips Trust II
(Exact name of obligor as specified in its charter)
Delaware Applied For
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
-------------
Preferred Securities
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
----------------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
EXHIBIT 25.4.1
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips
(Exact name of obligor as specified in its charter)
Delaware 01-0562944
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
-------------
Guarantees of Preferred Securities of
ConocoPhillips Trust I
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
------------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
EXHIBIT 25.4.2
================================================================================
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) [ ]
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
ConocoPhillips
(Exact name of obligor as specified in its charter)
Delaware 01-0562944
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
600 North Dairy Ashford
Houston, Texas 77079
(Address of principal executive offices) (Zip code)
-------------
Guarantees of Preferred Securities of
ConocoPhillips Trust II
(Title of the indenture securities)
================================================================================
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE
TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO
WHICH IT IS SUBJECT.
Name Address
---- -------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION,
ARE INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO
RULE 7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17
C.F.R. 229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which
contains the authority to commence business and a grant of
powers to exercise corporate trust powers. (Exhibit 1 to
Amendment No. 1 to Form T-1 filed with Registration Statement
No. 33-6215, Exhibits 1a and 1b to Form T-1 filed with
Registration Statement No. 33-21672 and Exhibit 1 to Form T-1
filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to
Form T-1 filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the
Act. (Exhibit 6 to Form T-1 filed with Registration Statement
No. 33-44051.)
7. A copy of the latest report of condition of the Trustee
published pursuant to law or to the requirements of its
supervising or examining authority.
-2-
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New
York, a corporation organized and existing under the laws of the State of New
York, has duly caused this statement of eligibility to be signed on its behalf
by the undersigned, thereunto duly authorized, all in The City of New York, and
State of New York, on the 23rd day of October, 2002.
THE BANK OF NEW YORK
By: /s/ MING SHIANG
---------------------------------
Name: MING SHIANG
Title: VICE PRESIDENT
EXHIBIT 7
- --------------------------------------------------------------------------------
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business June 30, 2002,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
--------------
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ........... $ 2,850,111
Interest-bearing balances .................................... 6,917,898
Securities:
Held-to-maturity securities .................................. 1,201,319
Available-for-sale securities ................................ 13,227,788
Federal funds sold in domestic offices .......................... 1,748,562
Securities purchased under agreements to
resell ....................................................... 808,241
Loans and lease financing receivables:
Loans and leases held for sale ............................... 974,505
Loans and leases, net of unearned
income ..................................................... 36,544,957
LESS: Allowance for loan and
lease losses ............................................... 578,710
Loans and leases, net of unearned
income and allowance ....................................... 35,966,247
Trading Assets .................................................. 6,292,280
Premises and fixed assets (including capitalized
leases) ...................................................... 860,071
Other real estate owned ......................................... 660
Investments in unconsolidated subsidiaries and
associated companies ......................................... 272,214
Customers' liability to this bank on acceptances
outstanding .................................................. 467,259
Intangible assets
Goodwill ..................................................... 1,804,922
Other intangible assets ...................................... 70,679
Other assets .................................................... 4,639,158
------------
Total assets .................................................... $ 78,101,914
============
LIABILITIES
Deposits:
In domestic offices .......................................... $ 29,456,619
Noninterest-bearing .......................................... 11,393,028
Interest-bearing ............................................. 18,063,591
In foreign offices, Edge and Agreement
subsidiaries, and IBFs ..................................... 26,667,608
Noninterest-bearing .......................................... 297,347
Interest-bearing ............................................. 26,370,261
Federal funds purchased in domestic
offices ....................................................... 1,422,522
Securities sold under agreements to repurchase .................. 466,965
Trading liabilities ............................................. 2,946,403
Other borrowed money:
(includes mortgage indebtedness and obligations
under capitalized leases) .................................... 1,844,526
Bank's liability on acceptances executed and
outstanding .................................................. 469,319
Subordinated notes and debentures ............................... 1,840,000
Other liabilities ............................................... 5,998,479
------------
Total liabilities ............................................... $ 71,112,441
============
Minority interest in consolidated
subsidiaries ................................................. 500,154
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ...................................................... 0
Common stock .................................................... 1,135,284
Surplus ......................................................... 1,055,509
Retained earnings ............................................... 4,244,963
Accumulated other comprehensive income .......................... (53,563)
Other equity capital components ................................. 0
------------
Total equity capital ............................................ 6,489,319
------------
Total liabilities minority interest and equity capital .......... $ 78,101,914
============
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition is true and
correct to the best of my knowledge and belief.
Thomas J. Mastro,
Senior Vice President and Comptroller
We, the undersigned directors, attest to the correctness of this
statement of resources and liabilities. We declare that it has been examined by
us, and to the best of our knowledge and belief has been prepared in conformance
with the instructions and is true and correct.
Thomas A. Renyi ]
Gerald L. Hassell ] Directors
Alan R. Griffith ]
