EXHIBIT 1.1
EXECUTION VERSION
MARATHON GLOBAL FUNDING CORPORATION
DEBT SECURITIES
(FULLY AND UNCONDITIONALLY GUARANTEED
BY MARATHON OIL CORPORATION)
UNDERWRITING AGREEMENT
New York, New York
June 18, 0000
Xxxx xx Xxxxxxx Securities LLC
X.X. Xxxxxx Securities Inc.
As Representatives of the several Underwriters,
c/o Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Marathon Global Funding Corporation, a Nova Scotia unlimited
liability company (the "Company"), and Marathon Oil Corporation, a Delaware
corporation (the "Guarantor"), propose to enter into one or more Pricing
Agreements (each a "Pricing Agreement") in the form of Annex I hereto, with such
additions and deletions as the parties thereto may determine, and, subject to
the terms and conditions stated herein and therein, to issue and sell to the
firms named in Schedule I to the applicable Pricing Agreement (such firms
constituting the "Underwriters" with respect to such Pricing Agreement and the
securities specified therein) certain of its debt securities, fully and
unconditionally guaranteed (the "Guarantees") by the Guarantor (such debt
securities, including the Guarantees, are referred to as the "Securities")
specified in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated
Securities shall be as specified in the Pricing Agreement relating thereto and
in or pursuant to the indenture (the "Indenture") identified in Schedule II to
such Pricing Agreement.
1. Particular sales of Designated Securities may be made from
time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as
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representatives (the "Representatives"). The term "Representatives" also refers
to a single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.
This Underwriting Agreement shall not be construed as an obligation of the
Company or the Guarantor to sell any of the Securities or as an obligation of
any of the Underwriters to purchase the Securities. The obligation of the
Company and the Guarantor to issue and sell any of the Securities and the
obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the Pricing Agreement with respect to the Designated Securities
specified therein. Each Pricing Agreement shall specify the aggregate principal
amount of such Designated Securities, the initial public offering price of such
Designated Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriter and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture and the registration statement and prospectus with
respect thereto) the terms of such Designated Securities. A Pricing Agreement
shall be in the form of an executed writing (which may be in counterparts), and
may be evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. The Company and the Guarantor, as the case may be,
represents and warrants to, and agrees with, each of the Underwriters that:
(a) A registration statement on Form S-3 (#333-90034 and
#333-90034-01) with respect to the Securities has been filed with the Securities
and Exchange Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to the Representatives, have been declared effective by the Commission
in such form; no other document with respect to such registration statement and
no other document required to be incorporated by reference therein has
heretofore been filed or transmitted for filing with the Commission (other than
documents filed prior to the date hereof and documents permitted to be filed
pursuant to Section 5(a) hereof); and no stop order suspending the effectiveness
of such registration statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission under the
Securities Act of 1933, as amended (the "Act"), being hereinafter called a
"Preliminary Prospectus"); the various parts of such registration statement,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the registration statement at the time such part of
the registration statement became effective but excluding Form T-1, each as
amended at the time such part of the registration statement became effective,
being hereinafter called the "Registration Statement"; if it is contemplated, at
the time the Pricing Agreement is executed, that a registration statement or a
post-effective amendment will be filed pursuant to Rule 462(b) or Rule 462(d)
under the Act, the term "Registration Statement" as used in this Agreement
includes such registration statement; the prospectus relating to the Securities,
in the form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this
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Agreement, being hereinafter called the "Prospectus"; any reference herein to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment or supplement to
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in such Preliminary
Prospectus or Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the Exchange
Act after the effective date of the Registration Statement that is incorporated
by reference in the Registration Statement; and any reference to the Prospectus
as amended or supplemented shall be deemed to refer to the Prospectus as amended
or supplemented in relation to the applicable Designated Securities in the form
in which it is first used to confirm sales of the Designated Securities and
filed with the Commission pursuant to Rule 424(b) under the Act in accordance
with Section 5(a) hereof (such Prospectus also called, the "Final Prospectus"),
including any documents incorporated by reference therein as of the date of such
filing);
(b) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the applicable requirements of the Act
or the Exchange Act, as applicable, and the applicable rules and regulations of
the Commission thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become effective or
are filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Final Prospectus relating to such
Securities;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the applicable requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and the applicable rules and regulations of the Commission thereunder and
do not and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as to
the Final Prospectus, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this representation
and warranty shall not apply to any statements or
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omissions made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter of Designated Securities through the
Representatives expressly for use in the Final Prospectus relating to such
Securities;
(d) Neither the Guarantor nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth in or
contemplated by the Final Prospectus; and, since the respective dates as of
which information is given in the Registration Statement and the Final
Prospectus, there has not been any material change in the capital stock or
long-term debt of the Guarantor or any of its subsidiaries or any material
adverse change, or any development likely to result in a prospective material
adverse change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole, otherwise than as set forth in or contemplated
by the Final Prospectus;
(e) The Company is an unlimited liability company duly
organized, validly existing and in good standing under the laws of Nova Scotia,
Canada, has the corporate power and authority to own its property and to conduct
its business as described in the Final Prospectus; and the Guarantor is a
corporation duly organized and validly existing in good standing under the laws
of the State of Delaware with full corporate power and authority to own, lease
and operate its properties and to conduct business as described in the
Registration Statement and the Final Prospectus;
(f) The Guarantor has an authorized capitalization as set
forth in the Final Prospectus, and all of the issued shares of capital stock of
the Company and the Guarantor have been duly and validly authorized and issued
and are fully paid and non-assessable;
(g) The Securities, including the Guarantees, have been duly
authorized by the Company and the Guarantor, and, when Designated Securities are
issued and delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Designated Securities, such Designated Securities will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company and the Guarantor entitled to the
benefits provided by the Indenture, which will be substantially in the form
filed as an exhibit to the Registration Statement; the Indenture has been duly
authorized, executed and delivered by the Company and the Guarantor and is duly
qualified under the Trust Indenture Act and, at the Time of Delivery (as defined
in Section 4 hereof) for such Designated Securities, the Indenture will
constitute a valid and legally binding instrument, enforceable in accordance
with its terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or transfer and other laws of
general applicability relating to or affecting creditors' rights and to general
equity principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law); and the Indenture and the Designated Securities
will conform to the descriptions thereof contained in the Final Prospectus with
respect to such Designated Securities;
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(h) The issue and sale of the Securities and the compliance by
the Company and the Guarantor with all of the provisions of the Securities, the
Indenture, this Agreement and any Pricing Agreement, and the consummation of the
transactions herein and therein contemplated (i) will not result in any
violation of the provisions of the Restated Certificate of Incorporation or
By-laws of the Guarantor or the Memorandum of Association and Articles of
Association of the Company, (ii) will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under
any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or the Guarantor is a party or by which the
Company or the Guarantor is bound or to which any of the property or assets of
the Company or the Guarantor is subject, except for such conflicts, breaches,
violations or defaults which would not, individually or in the aggregate, have a
material adverse effect on the consolidated financial position, stockholders'
equity or results of operations of the Guarantor and its subsidiaries, taken as
a whole and (iii) will not result in any violation of the provisions of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or the Guarantor or any of its
properties, except for such violations which would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the issue and sale of the Designated Securities or the
consummation by the Company or the Guarantor of the transactions contemplated by
this Agreement or any Pricing Agreement or the Indenture, except such as have
been, or will have been prior to the Time of Delivery, obtained under the Act
and the Trust Indenture Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Securities
by the Underwriters; and
(i) Other than as set forth in the Final Prospectus, there are
no legal or governmental proceedings pending to which the Guarantor, the
Company, or any of their subsidiaries is a party or of which any property of the
Guarantor, the Company, or any of their subsidiaries is the subject which, if
determined adversely to the Guarantor, the Company, or any of their
subsidiaries, would have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole; and, to the best of the Company's knowledge, no
such proceedings are threatened by governmental authorities or by others.
3. Upon the execution of the Pricing Agreement applicable to
any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to offer
such Designated Securities for sale upon the terms and conditions set forth in
the Final Prospectus.
4. Designated Securities to be purchased by each Underwriter
pursuant to the Pricing Agreement relating thereto, in definitive form to the
extent practicable, and in such authorized denominations and registered in such
names as the Representatives may request upon at least forty-eight hours prior
notice to the Company, shall be delivered by or on behalf of the Company and the
Guarantor to the Representatives for the account of such Underwriter, against
payment by such Underwriter or on its behalf of the purchase price therefor by
electronic funds
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transfer in the funds specified in such Pricing Agreement, all at the place and
time and date specified in such Pricing Agreement or at such other place and
time and date as the Representatives and the Company may agree upon in writing,
such time and date being herein called the "Time of Delivery" for such
Securities.
5. The Company and the Guarantor agree with each of the
Underwriters of any Designated Securities:
(a) To prepare the Final Prospectus in relation to the
applicable Designated Securities in a form approved by the Representatives and
to file such Final Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day following the
execution and delivery of the Pricing Agreement relating to the applicable
Designated Securities or, if applicable, such earlier time as may be required by
Rule 424(b); to make no further amendment or any supplement to the Registration
Statement or Final Prospectus after the date of the Pricing Agreement relating
to such Designated Securities and prior to the Time of Delivery for such
Designated Securities to which the Representatives for such Designated
Securities shall reasonably object promptly after reasonable notice thereof; to
advise the Representatives promptly of any such amendment or supplement after
such Time of Delivery and to furnish the Representatives with copies thereof; to
file promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14, or 15(d) of the Exchange Act for so long as the delivery of a
prospectus is required in connection with the offering or sale of such
Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed with
the Commission, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any prospectus relating to the
Designated Securities, of the suspension of the qualification of such Designated
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration Statement or
Prospectus or for additional information; and, in the event of the issuance of
any such stop order or of any such order preventing or suspending the use of any
prospectus relating to the Designated Securities or suspending any such
qualification, to use promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify such Designated Securities for
offering and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long as
may be necessary to complete the distribution of such Designated Securities,
provided that in connection therewith neither the Company nor the Guarantor
shall be required to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction or to subject itself to
taxation in any jurisdiction;
(c) To furnish the Underwriters with copies of the Final
Prospectus in such quantities as the Representatives may from time to time
reasonably request, and, if the
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delivery of a prospectus is required at any time in connection with the offering
or sale of the Designated Securities and if at such time any event shall have
occurred as a result of which the Final Prospectus would include an untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made when such Final Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same period to
amend or supplement the Final Prospectus or to file under the Exchange Act any
document incorporated by reference in the Final Prospectus in order to comply
with the Act, the Exchange Act or the Trust Indenture Act, to notify the
Representatives and to file such document and to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended Final
Prospectus or a supplement to the Final Prospectus which will correct such
statement or omission or effect such compliance;
(d) To make generally available to its security holders as
soon as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158 (c)), an
earnings statement of the Guarantor and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
of the Commission thereunder (including at the option of the Guarantor Rule
158); and
(e) Except for debt securities which the Company and the
Guarantor have advised the Representatives in writing prior to the date of the
Pricing Agreement for such Designated Securities, during the period beginning
from the date of the Pricing Agreement for such Designated Securities and
continuing to the Time of Delivery for such Designated Securities, not to offer,
sell, contract to sell or otherwise dispose of any debt securities of the
Company or the Guarantor which mature more than one year after such Time of
Delivery and which are substantially similar to such Designated Securities,
without the prior written consent of the Representatives.
6. Each of the Company and the Guarantor covenants and agrees
with the several Underwriters that the Company or the Guarantor will pay or
cause to be paid the following: (i) the fees, disbursements and expenses of the
Company's and Guarantor's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Final Prospectus and amendments
and supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing any Agreement
among Underwriters, this Agreement, any Pricing Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iii) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky and legal
investment surveys; (iv) any fees charged by securities rating services for
rating the Securities; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. of the terms of the sale of
the Securities; (vi) the cost of preparing the Securities; (vii) the fees and
expenses of any Trustee and any agent of any
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Trustee and the fees and disbursements of counsel for any Trustee in connection
with any Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of their obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood, however,
that, except as otherwise agreed by the Company, the Guarantor and the
Underwriters and except as provided in this Section, Section 8 and Section 11
hereof, the Underwriters will pay all of their own costs and expenses, including
the fees of their counsel, transfer taxes on resale of any of the Securities by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters of any Designated
Securities under the Pricing Agreement relating to such Designated Securities
shall be subject, in the discretion of the Representatives, to the condition
that all representations and warranties and other statements of the Company and
the Guarantor in or incorporated by reference in the Pricing Agreement relating
to such Designated Securities are, at and as of the Time of Delivery for such
Designated Securities, true and correct, the condition that each of the Company
and the Guarantor shall have performed all of its obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Final Prospectus in relation to the applicable
Designated Securities shall have been filed with the Commission pursuant to Rule
424(b) within the applicable time period prescribed for such filing by the rules
and regulations under the Act and in accordance with Section 5(a) hereof; no
stop order suspending the effectiveness of the Registration Statement or any
part thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have been complied
with to the Representatives' reasonable satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the incorporation of the Company and the
Guarantor, the validity of the Indenture, the Designated Securities, the
Registration Statement, the Final Prospectus and other related matters as the
Representatives may reasonably request, and such counsel shall have received
such papers and information as they may reasonably request to enable them to
pass upon such matters;
(c) The Company shall have requested and caused counsel for
the Company and the Guarantor to furnish to the Representatives written
opinions, dated the Time of Delivery for such Designated Securities, in
substantially the form attached hereto as Annex IV and Annex V, which opinions
must be in form and substance reasonably satisfactory to the Representatives.
(d) At the date and time of execution (the "Execution Time")
of the Pricing Agreement and at the Time of Delivery for such Designated
Securities, the independent accountants of the Guarantor who have certified the
financial statements of the Guarantor and its subsidiaries included or
incorporated by reference in the Registration Statement shall have furnished to
the Representatives a letter, dated such date, to the effect set forth in Annex
II hereto, and with respect to such letter dated the date of the Time of
Delivery, as to such
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other matters as the Representatives may reasonably request and in form and
substance reasonably satisfactory to the Representatives;
(e) On or after the date and time that the Pricing Agreement
relating to the Designated Securities is executed by the parties thereto, there
shall not have been any change, or any development involving a prospective
change, in or affecting the general affairs, management, financial position,
stockholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole, except as set forth in or contemplated in the
Final Prospectus the effect of which is, in the judgment of the Representatives,
so material and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Designated Securities.
(f) On or after the date and time that the Pricing Agreement
relating to the Designated Securities is executed by the parties thereto (i) no
downgrading shall have occurred in the rating accorded the Guarantor's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
the Guarantor's securities or securities guaranteed by the Guarantor, including
any of the Company's debt securities;
(g) On or after the date and time that the Pricing Agreement
relating to the Designated Securities is executed by the parties thereto there
shall not have occurred any of the following: (i) trading in the Guarantor's
Common Stock shall have been suspended by the Commission or The New York Stock
Exchange or there shall have been a suspension or material limitation of trading
in securities generally on The New York Stock Exchange or minimum prices shall
have been established on such exchange; (ii) a general moratorium on commercial
banking activities in New York declared by either Federal or New York State
authorities or a material disruption of securities settlement or clearance
services; or (iii) any outbreak or escalation of major hostilities in which the
United States is involved, any declaration of war by Congress or any similar
substantial national or international calamity or emergency, if the effect of
any such event specified in this clause in the judgment of the Representatives
makes it impractical or inadvisable to proceed with the public offering or the
delivery of the Designated Securities;
(h) The Company shall have furnished or caused to be furnished
to the Representatives at the Time of Delivery for the Designated Securities a
certificate or certificates of officers of the Company and the Guarantor
reasonably satisfactory to the Representatives as to the accuracy of the
representations and warranties of the Company and the Guarantor herein at and as
of such Time of Delivery, as to the performance by the Company and the Guarantor
of all of their obligations hereunder to be performed at or prior to such Time
of Delivery, as to the matters set forth in subsections (a) and (e) of this
Section and as to such other matters as the Representatives may reasonably
request;
(i) The Representatives shall have received on the Closing
Date an opinion of Xxxxxxx XxXxxxxx Stirling Scales, special Canadian counsel to
the Company, in substantially the form of Annex III; and
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(j) The Representatives shall have received on the Closing
Date a Canadian tax opinion of Xxxxxxx Xxxxx LLP, special Canadian counsel to
the Company, in substantially the form of Annex VII.
If any of the conditions specified in this Section 7 shall not
have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, the applicable Pricing Agreement and all obligations of the
Underwriters thereunder may be canceled at, or at any time prior to, the Time of
Delivery by the Representatives. Notice of such cancelation shall be given to
the Company and the Guarantor in writing or by telephone or facsimile confirmed
in writing.
The documents required to be delivered by this Section 7 shall
be delivered at the time and place specified in the Pricing Agreement relating
to the Designated Securities.
8. (a) The Company and the Guarantor will indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act, against any losses, claims, damages or liabilities, joint or several, to
which such Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Final
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that neither the Company nor the Guarantor will be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
in or omission or alleged omission from any such document in reliance upon and
in conformity with written information furnished to the Company and the
Guarantor by any Underwriter through the Representatives, if any, specifically
for use therein; provided, further, that the foregoing indemnification, to the
extent it relates to any actual or alleged untrue statement or omission made in
or from any Preliminary Prospectus but eliminated or remedied in the Final
Prospectus, shall not inure to the benefit of any Underwriter from whom the
person asserting such untrue statement or omission purchased offered Securities
if a copy of the Final Prospectus (excluding documents incorporated therein by
reference) was not sent or given to such person at or prior to the written
confirmation of the sale of such offered Securities to such person if the
Company or the Guarantor has previously furnished copies thereof to such
Underwriter.
(b) Each Underwriter will, severally and not jointly,
indemnify and hold harmless the Company and the Guarantor and each of their
directors, officers and each person, if any, who controls the Company or the
Guarantor within the meaning of either Section 15 of the Act or Section 20 of
the Exchange Act, against any losses, claims, damages
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or liabilities to which the Company or the Guarantor may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Final Prospectus and any other prospectus relating to the Securities, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Final Prospectus and any other prospectus relating to the Securities, or any
such amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company and the Guarantor by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Company and the Guarantor for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify the indemnifying party in
writing of the commencement thereof; but the failure to so notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party, and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Notwithstanding the foregoing, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest or (ii) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. No
indemnifying party shall, in connection with any one action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
indemnified parties, which firm shall be designated in writing by the
Representatives if the indemnified parties under this Section 8 consist of any
Underwriter or any of their respective controlling persons, or by the Company
and the Guarantor, if the indemnified parties under this Section 8 consist of
the Company, the Guarantor or any of the Company's or Guarantor's directors,
officers or controlling persons. No indemnifying party shall, without the prior
written consent of the
12
indemnified party, effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability arising out of such action or claim and (ii) does not include
a statement as to or an admission of fault, culpability or failure to act, by or
on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantor on the one hand and
the Underwriters of the Designated Securities on the other from the offering of
the Designated Securities to which such loss, claim, damage or liability (or
action in respect thereof) relates. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the Guarantor
on the one hand and the Underwriters of the Designated Securities on the other
in connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Guarantor on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from such
offering (before deducting expenses) received by the Company and the Guarantor
bear to the total underwriting discounts and commissions received by such
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Guarantor on the one hand or such
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Guarantor and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this subsection (d) were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the applicable Designated Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
13
fraudulent misrepresentation. The obligations of the Underwriters of Designated
Securities in this subsection (d) to contribute are several in proportion to
their respective underwriting obligations with respect to such Securities and
not joint.
(e) The obligations of the Company and the Guarantor under
this Section 8 shall be in addition to any liability, which the Company and the
Guarantor may otherwise have; and the obligations of the Underwriters under this
Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have.
9. (a) If any Underwriter shall default in its obligation to
purchase the Designated Securities which it has agreed to purchase under the
Pricing Agreement relating to such Designated Securities, the Representatives
may in their discretion arrange for themselves or another party or other parties
reasonably satisfactory to the Company and the Guarantor to purchase such
Designated Securities on the terms contained herein. If within thirty-six hours
after such default by any Underwriter the Representatives do not arrange for the
purchase of such Designated Securities, then the Company and the Guarantor shall
be entitled to a further period of thirty-six hours within which to procure
another party or other parties reasonably satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within the
respective prescribed period, the Representatives notify the Company and the
Guarantor that they have so arranged for the purchase of such Designated
Securities, or the Company and the Guarantor notify the Representatives that
they have so arranged for the purchase of such Designated Securities, the
Representatives or the Company and the Guarantor shall have the right to
postpone the Time of Delivery for such Designated Securities for a period of not
more than seven days, in order to effect whatever changes may thereby be made
necessary in the Registration Statement or the Final Prospectus, or in any other
documents or arrangements, and the Company and the Guarantor agree to file
promptly any amendments or supplements to the Registration Statement or the
Final Prospectus which the majority in interest of the Underwriters (including
the Representatives) may reasonably determine are thereby necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of such
Designated Securities which remains unpurchased does not exceed one-tenth of the
aggregate principal amount of the Designated Securities, then the Company and
the Guarantor shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Designated Securities which such Underwriter
agreed to purchase under the Pricing Agreement relating to such Designated
Securities and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of Designated
Securities which such Underwriter agreed to purchase under such Pricing
Agreement) of the Designated Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
14
(c) If, after giving effect to any arrangements for the
purchase of the Designated Securities of a defaulting Underwriter or
Underwriters by the Representatives and the Company and the Guarantor as
provided in subsection (a) above, the aggregate principal amount of Designated
Securities which remains unpurchased exceeds one-tenth of the aggregate
principal amount of the Designated Securities, as referred to in subsection (b)
above, or if the Company and the Guarantor shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Designated Securities of a defaulting Underwriter or Underwriters, then
the Pricing Agreement relating to such Designated Securities shall thereupon
terminate, without liability on the part of any nondefaulting Underwriter, the
Company or the Guarantor, except for the expenses to be borne by the Company,
the Guarantor and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations,
warranties and other statements of the Company and the Guarantor and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company or the Guarantor, or any officer or director or
controlling person of the Company or the Guarantor, and shall survive delivery
of and payment for the Securities. The provisions of Sections 6 and 8 hereof
shall survive the termination or cancelation of this Agreement.
11. If the sale of the Designated Securities provided for by
the Pricing Agreement is not consummated for any reason (other than (1) a breach
by any Underwriter of its obligations hereunder, (2) a termination pursuant to
Section 9 hereof, or (3) a termination pursuant to the second clause of Section
7(g)(i), Section 7(g)(ii) or Section 7(g)(iii) hereof), the Company and the
Guarantor will reimburse the Underwriters severally, through the
Representatives, for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but neither the Company nor the
Guarantor shall then be under any further liability to any Underwriter with
respect to such Designated Securities, except that the provisions of Sections 6
and 8 hereof shall survive. If the sale of the Designated Securities provided
for by the Pricing Agreement is not consummated due to (1) a breach by any
Underwriter of its obligations hereunder, (2) a termination pursuant to Section
9 hereof or (3) a termination pursuant to the second clause of Section 7(g)(i),
Section 7(g)(ii) or Section 7(g)(iii) hereof, the Underwriters will be
responsible for all out-of-pocket expenses that shall have been incurred by them
in connection with the purchase and sale of the Designated Securities, except
that the provisions of Sections 6 and 8 hereof shall survive.
12. In all dealings hereunder, the Representatives of the
Underwriters of Designated Securities shall act on behalf of each of such
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by such Representatives jointly or by such of the Representatives, if any,
as may be designated for such purpose in the Pricing Agreement.
15
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Representatives as set forth in the
Pricing Agreement; and if to the Company or the Guarantor shall be delivered or
sent by mail, telex or facsimile transmission to the Guarantor at 0000 Xxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxx 00000-0000, or by facsimile to (000) 000-0000:
Attention: Corporate Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by the Representatives upon request. Any
such statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement and each Pricing Agreement shall be binding
upon, and inure solely to the benefit of, the Underwriters, the Company, the
Guarantor and, to the extent provided in Section 8 and Section 10 hereof, the
officers and directors of the Company and the Guarantor and each person who
controls the Company, the Guarantor or any Underwriter, and their respective
heirs, executors, administrators, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any such
Pricing Agreement. No purchaser of any of the Securities from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As
used herein, "business day" shall mean any day when the Commission's office in
Washington D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be
governed by and construed in accordance with the laws of the State of New York.
The Company has appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as its Authorized Agent (the "Authorized Agent") upon whom
process may be served in any suit, action or proceeding arising out of or
relating to any Pricing Agreement (including the provisions of this Agreement)
or the transactions contemplated thereby that may be instituted in any Federal
or state court in the Borough of Manhattan in The City of New York by any
Underwriter or by any person who controls any Underwriter.
16. This Agreement and each Pricing Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
16
If the foregoing is in accordance with your understanding,
please sign and return to us seven counterparts hereof.
Very truly yours,
Marathon Global Funding Corporation
By: /s/ XXXX X. XXXXX
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Treasurer
Marathon Oil Corporation
By: /s/ XXXX X. XXXXXXXX
------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President, Finance and Treasurer
17
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC
X. X. XXXXXX SECURITIES INC.
By: Banc of America Securities LLC
By: /s/ XXXX XXXXX
---------------------------------
Name: Xxxx Xxxxx
Title: Principal
By: X.X. Xxxxxx Securities Inc.
By: /s/ XXXXXX XXXXXXXXXXX
---------------------------------
Name: Xxxxxx Xxxxxxxxxxx
Title: Vice President
For each of themselves and the other several Underwriters named in Schedule I to
the applicable Pricing Agreement.
ANNEX I
FORM OF PRICING AGREEMENT
, 20__
[Name(s) and Address(es)
of Representative(s)]
As Representatives of the several
Underwriters named in Schedule I
hereto,
Dear Sirs:
Marathon Global Funding Corporation, a Nova Scotia unlimited
liability company (the "Company"), and Marathon Oil Corporation, a Delaware
corporation (the "Guarantor"), propose, subject to the terms and conditions
stated herein and in the Underwriting Agreement, dated [ ] (the "Underwriting
Agreement"), among the Company, the Guarantor and [ ] and [ ], as
representatives, to issue and sell to the Underwriters named in Schedule I
hereto (the "Underwriters") the Securities specified in Schedule II hereto (the
"Designated Securities"). The Designated Securities are fully and
unconditionally guaranteed by the Guarantor. Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Final Prospectus in Section 2 of the Underwriting Agreement
shall be deemed to be a representation or warranty as of the date of the
Underwriting Agreement in relation to the Final Prospectus (as therein defined),
and also a representation and warranty as of the date of this Pricing Agreement
in relation to the Final Prospectus as amended or supplemented relating to the
Designated Securities which are the subject of this Pricing Agreement. Each
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined.
The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
The documents required to be delivered by Section 7 of the
Underwriting Agreement shall be delivered at the office of [ ], counsel for the
Underwriters, at [ ], at the Time of Delivery.
I-2
An amendment to the Registration Statement, or a supplement to
the Prospectus, as the case may be, relating to the Designated Securities, in
the form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in
the Underwriting Agreement incorporated herein by reference, the Company agrees
to issue and sell to each of the Underwriters and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time and
place and at the purchase price to the Underwriters set forth in Schedule II
hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding,
please sign and return to us [ ] counterparts hereof, and upon acceptance hereof
by you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters, the Guarantor and the Company. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is or will be
pursuant to the authority set forth in a form of Agreement Among Underwriters,
the form of which shall be submitted to the Company for examination upon
request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
Marathon Global Funding Corporation
By:
-----------------------------------
Name:
Title:
Marathon Oil Corporation
By:
-----------------------------------
Name:
Title:
I-3
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[ ]
[ ]
By: [ ]
By:
----------------------------
Name:
Title:
By: [ ]
By:
----------------------------
Name:
Title:
For themselves and the other several Underwriters named in Schedule I to the
applicable Pricing Agreement.
ANNEX II
FORM OF COMFORT LETTER
Pursuant to Section 7(d) of the Underwriting Agreement, the Company
shall have requested and caused PricewaterhouseCoopers LLP to have furnished to
the Representatives, at the date and time of execution (the "Execution Time") of
the Pricing Agreement and at the Time of Delivery, letters, dated respectively
as of the Execution Time and as of the Time of Delivery, in form and substance
satisfactory to the Representatives, confirming that they are independent
accountants within the meaning of the Act and the Exchange Act and the
respective applicable rules and regulations adopted by the Commission thereunder
[and that they have performed a review of the unaudited interim financial
information of the Company for the [ ]-month period ended [ ], and as at [ ] in
accordance with Statement on Auditing Standards No. 71], and stating in effect
that:
(i) in their opinion the audited financial
statements and financial statement schedules included
or incorporated by reference in the Registration
Statement and the Final Prospectus and reported on by
them comply as to form in all material respects with
the applicable accounting requirements of the Act and
the Exchange Act and the related rules and
regulations adopted by the Commission;
(ii) on the basis of: [a reading of the
latest unaudited financial statements made available
by the Company and its subsidiaries; their limited
review, in accordance with standards established
under Statement on Auditing Standards No. 71, of the
unaudited interim financial information for the [
]-month period ended [ ], and as at [ ] incorporated
by reference in the Registration Statement and the
Final Prospectus;] carrying out certain specified
procedures (but not an examination in accordance with
generally accepted auditing standards) which would
not necessarily reveal matters of significance with
respect to the comments set forth in such letter; a
reading of the minutes of the meetings of the
stockholders, directors and executive, finance and
audit committees of the Company and the Subsidiaries;
and inquiries of certain officials of the Company who
have responsibility for financial and accounting
matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31,
2001, nothing came to their attention which caused
them to believe that:
[(1) any unaudited financial
statements included or incorporated by
reference in the Registration Statement and
the Final Prospectus do not comply as to
form in all material respects with
applicable accounting requirements of the
Act and with the related rules and
regulations adopted by the Commission with
respect to financial statements included or
incorporated by
II-2
reference in quarterly reports on Form 10-Q
under the Exchange Act; and said unaudited
financial statements are not in conformity
with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited
financial statements included or
incorporated by reference in the
Registration Statement and the Final
Prospectus; ]
(2) with respect to the period
subsequent to [ ], there were any changes,
at a specified date not more than five days
prior to the date of the letter, in the
long-term debt of the Company and its
subsidiaries or capital stock of the Company
or decreases in the stockholders' equity of
the Company as compared with the amounts
shown on the [ ] consolidated balance sheet
included or incorporated by reference in the
Registration Statement and the Final
Prospectus, or for the period from [ ]to
such specified date there were any
decreases, as compared with the
corresponding period in the preceding year
in net revenues or income before income
taxes or in total or per share amounts of
net income of the Company and its
subsidiaries, except in all instances for
changes or decreases set forth in such
letter, in which case the letter shall be
accompanied by an explanation by the Company
as to the significance thereof unless said
explanation is not deemed necessary by the
Representatives; or
(3) the information included or
incorporated by reference in the
Registration Statement and Final Prospectus
in response to Regulation S-K, Item 301
(Selected Financial Data), Item 302
(Supplementary Financial Information) and
Item 503(d) (Ratio of Earnings to Fixed
Charges) is not in conformity with the
applicable disclosure requirements of
Regulation S-K; and
(iii) they have performed certain other
specified procedures as a result of which they
determined that certain information of an accounting,
financial or statistical nature (which is limited to
accounting, financial or statistical information
derived from the general accounting records of the
Company and its subsidiaries) set forth in the
Registration Statement and the Final Prospectus and
in Exhibit 12.1 to the Registration Statement,
including the information set forth in the Final
Prospectus, the information included or incorporated
by reference in Items 1, 2, 6, 7 and 11 of the
Company's most recently filed Annual Report on Form
10-K, incorporated by reference in the Registration
Statement and the Final Prospectus; and the
information included in the "Management's Discussion
and Analysis of Financial Condition and Results of
Operations" included or incorporated by reference in
the Company's Quarterly Reports on Form 10-Q,
incorporated by reference in the Registration
Statement and the Final Prospectus, agrees with the
II-3
accounting records of the Company and its
subsidiaries, excluding any questions of legal
interpretation.
ANNEX III
FORM OF CANADIAN OPINION
OPINION OF [CANADIAN COUNSEL] PURSUANT TO SECTION 7(i) OF
THE UNDERWRITING AGREEMENT
June , 0000
Xxxx xx Xxxxxxx Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and
X. X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
As Representatives of the several Underwriters,
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
Re: MARATHON GLOBAL FUNDING CORPORATION - ISSUE
OF ___% NOTES DUE 20__
We have acted as Canadian counsel to Marathon Global Funding Corporation (the
"Company") in connection with the creation, issue and sale by the Company of
U.S. $400,000,000 principal amount of ___% notes due 20__ (the "Designated
Securities"), as guaranteed by Marathon Oil Corporation (the "Guarantor"),
pursuant to an underwriting agreement dated June , 2002 (the "Underwriting
Agreement") among the Company, the Guarantor, and Banc of America
III-2
Securities LLC, for itself and the other several Underwriters named in Schedule
__ of the Underwriting Agreement (the "Underwriters").
The Designated Securities were issued pursuant to the provisions of an indenture
dated as of June , 2002 (the "Indenture") between the Company, the Guarantor,
and [ ] as trustee.
This opinion is being delivered to you pursuant to section 7(i) of the
Underwriting Agreement. All capitalized terms used herein and not defined will
have the meanings ascribed thereto in the Underwriting Agreement.
As counsel to the Company, we have participated, together with [ ], United
States counsel to the Company, and Cravath, Swaine & Xxxxx, United States
counsel to the Underwriters, in the preparation of the Underwriting Agreement
and the Indenture.
We have also considered such questions of law and examined such statutes, public
and corporate records, certificates of governmental authorities and officers of
the Company and other documents and conducted such other examinations as we have
considered necessary or desirable to enable us to express the opinions
hereinafter set forth. In such examination we have assumed the legal capacity of
all individuals, the veracity of the information contained in the documents, the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity to authentic original documents of all
documents submitted to us as certified, conformed, facsimile or photostatic
copies of original documents.
We are solicitors qualified to practice law in the Province of ______ and,
except to the extent that we rely upon the opinions of other counsel as herein
set forth, we express no opinion as to any laws or any matters governed by any
laws other than the laws of the Province of ______ and the federal laws of
Canada applicable therein.
The phrases "to our knowledge" or "we are not aware of" or similar phrases as
used to qualify any opinion herein means the actual knowledge or awareness of
those lawyers of our firm who were involved in the offering of the Designated
Securities without such lawyers making specific inquiry or investigation for the
purpose of this opinion.
As to various questions of fact material to our opinion, which we have not
verified independently, we have relied upon documents or certificates of
governmental authorities and the Company or its officers. In expressing the
opinions in paragraphs (a) and (f) we have relied, as to factual matters,
exclusively on the officer's certificate provided by an officer of the Company
(the "Officer's Certificate"), a copy of which is attached, and we believe that
we and you may properly rely upon such Officer's Certificate. In expressing the
opinion in paragraph (f) with respect to the non-contravention of applicable
law, we have assumed that the Designated Securities will not be sold by the
Underwriters in Canada and that the Designated Securities will not be sold to
purchasers having the intention of re-sale to persons in Canada.
On the basis of the foregoing and subject to the qualifications hereinafter
expressed, we are of the opinion that:
III-3
(a) the Company has been duly incorporated, is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
business and is in good standing in each Canadian jurisdiction
in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the
Company taken as a whole;
(b) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company;
(c) the Indenture has been duly authorized, executed and delivered
by the Company;
(d) the Designated Securities have been duly authorized, executed
and delivered by the Company;
(e) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the
Underwriting Agreement, the Indenture and the Designated
Securities will not contravene any provisions of the
memorandum or articles of incorporation of the Company;
(f) to our knowledge, the execution and delivery by the Company
of, and the performance by the Company of its obligations
under, the Underwriting Agreement, the Indenture and the
Designated Securities will not contravene any agreement or
other instrument binding upon the Company that has been filed
pursuant to and in accordance with the Exchange Act and that
is material to the Company taken as a whole, or any judgment,
order or decree of any governmental body, agency or court of
Canada or any jurisdiction therein, or any provision of
applicable law and no consent, approval, authorization or
order of or qualification with any governmental body or agency
is required for the performance by the Company of its
obligations under the Underwriting Agreement, the Indenture or
the Designated Securities;
(g) a court of competent jurisdiction in the Province of Nova
Scotia would give effect to the choice of New York law as the
proper law governing the Indenture, the Designated Securities
and the Underwriting Agreement provided that such choice of
law is bona fide (in the sense that it was not made with a
view to avoiding the consequences of the laws of any other
jurisdiction) and provided that such choice of law is not
contrary to public policy, as that term is understood under
the laws of the Province of Nova Scotia and the federal laws
III-4
of Canada applicable therein; to our knowledge, there are no
reasons under present law for avoiding the choice of New York
law to govern the Indenture, the Designated Securities and the
Underwriting Agreement under the laws of the Province of Nova
Scotia and the federal laws of Canada applicable therein;
(h) if the Indenture, the Designated Securities and the
Underwriting Agreement were sought to be enforced in the
Province of Nova Scotia in accordance with the laws applicable
thereto, as chosen by the parties, namely, New York law, a
court of competent jurisdiction in the Province of Nova Scotia
would, subject to paragraph (g) above, and to the extent
specifically pleaded and proved as a fact by expert evidence,
recognize the choice of New York law and apply such law to all
issues that, under the conflict of laws rules of the Province
of Nova Scotia, are to be determined in accordance with the
proper or general law of a contract, provided that none of the
provisions of the Indenture, the Designated Securities and the
Underwriting Agreement, or of New York law, are contrary to
public policy as that term is understood under the laws of the
Province of Nova Scotia and the federal laws of Canada
applicable therein; and further provided that, in matters of
procedure (as that term is understood under the laws of the
Province of Nova Scotia and the federal laws of Canada
applicable therein), the laws of the Province of Nova Scotia
will be applied including the [ ] and a court of competent
jurisdiction in the Province of Nova Scotia will retain
discretion to decline to hear such action and apply such law
(1) if it is contrary to public policy (as that term is
understood under the laws of the Province of Nova Scotia and
the federal laws of Canada applicable therein) for such court
to do so, or (ii) if it is not the proper forum to hear such
an action, or (iii) if concurrent proceedings are being
brought elsewhere; to our knowledge, there are no reasons
based on public policy, as that term is understood under the
laws of the Province of Nova Scotia and the laws of Canada
applicable therein, for avoiding enforcement of the Indenture,
the Designated Securities or the Underwriting Agreement (with
the exception of the indemnity and contribution provisions
contained therein);
(i) the laws of the Province of Nova Scotia permit an action to be
brought in a court of competent jurisdiction in the Province
of Nova Scotia on any final and conclusive judgment in
personam for a fixed sum of money of any federal or state
court located in the Borough of Manhattan in the City of New
York ("New York Court") respecting the enforcement of the
Indenture, the Designated Securities and the Underwriting
Agreement that is not impeachable as void or voidable under
the internal laws of the State of New York for a sum certain
if (i) the court rendering such judgment had jurisdiction over
the judgment debtor, as recognized by the courts of the
Province of Nova Scotia (to our knowledge, submission under
the provisions of the Indenture, the Designated Securities and
the Underwriting Agreement to the jurisdiction of the New York
Court will be sufficient for this purpose), and the judgment
debtor was properly served in the action leading to such
III-5
judgment; (ii) such judgment was not obtained by fraud or in a
manner contrary to natural justice and the enforcement thereof
would not be inconsistent with public policy, as such term is
understood under the laws of the Province of Nova Scotia, or
contrary to any order made by the Attorney General of Canada
under the Foreign Extraterritorial Measures Act (Canada) or by
the Competition Tribunal under the Competition Act (Canada);
(iii) the enforcement of such judgment does not constitute,
directly or indirectly, the enforcement of foreign revenue,
expropriation or penal laws or other laws of a public law
nature; (iv) no new admissible evidence relevant to the action
is discovered prior to rendering of judgment by the court in
the Province of Nova Scotia; and (v) the action to enforce
such judgment is commenced within the applicable limitation
periods; to our knowledge, there are no reasons under present
law of the Province of Nova Scotia for avoiding recognition of
said judgments of New York Courts which might be rendered in
respect of the Indenture, the Designated Securities and the
Underwriting Agreement based upon public policy, as that term
is understood under the laws of the Province of Nova Scotia
and the federal laws of Canada applicable therein; and
(j) in an action on a final and conclusive judgment in personam
for a fixed sum of money of a New York Court which is not
impeachable as void or voidable under New York law, a court of
competent jurisdiction in the Province of Nova Scotia would
not refuse to recognize the jurisdiction of the court
rendering such judgment on the basis of process having been
served on CT Corporation System [WHO IS MARATHON FUNDING'S
EQUIVALENT?] as the agent to receive service of process in the
United States of America appointed by the Company under the
Indenture and the Underwriting Agreement provided the Company
has not purported to revoke the appointment, or CT Corporation
System has not terminated the agency or otherwise rendered
service on it ineffective.
Our opinion in paragraph (h) relating to the enforceability of the Indenture,
the Designated Securities and the Underwriting Agreement, as applicable, and our
opinion in paragraphs (i) and (j) relating to a final and conclusive judgment in
personam for a fixed sum of money of a New York court are subject to the
following limitations and qualifications:
(i) enforceability may be limited by bankruptcy, insolvency,
limitations of action, reorganization, moratorium or other
laws of general application now or hereafter in effect
relating to or affecting the rights of creditors;
(ii) enforceability may be limited by general principles of equity,
including the limitation that the grant of equitable remedies,
including specific performance, is discretionary and may not
be available;
III-6
(iii) enforcement of the rights to indemnity and contribution may be
limited by applicable law and may or may not be ordered by a
court on grounds of public policy;
(iv) enforcement is subject to the equitable or statutory powers of
the courts to stay proceedings before them and the execution
of judgments;
(v) enforceability of provisions which purport to sever any
provision which is prohibited or unenforceable under
applicable law without affecting the enforceability or
validity of the remainder of such document would be determined
only in the discretion of the court;
(vi) under the Currency Act (Canada), a court of competent
jurisdiction in the Province of Nova Scotia may only give
judgment in Canadian dollars; and
(vii) interest payable on a judgment debt may be limited by the
provisions of the Interest Act (Canada) and the [ ].
This opinion is furnished to you by us as Canadian counsel to the Company is
solely for the benefit of the addressees hereof and not for the benefit of any
other person and is rendered solely in connection with the sale of the
Designated Securities. This opinion may not be quoted in whole or in part, or
otherwise referred to or used for any purpose, without our prior written consent
except that [ ] and Cravath, Swaine & Xxxxx may quote and rely on this opinion
for purposes of their opinions delivered to the Underwriters on the date hereof
in connection with the creation, issue and sale by the Company of the Designated
Securities and related transactions.
Yours very truly,
Enclosures
ANNEX IV
FORM OF IN-HOUSE COUNSEL'S OPINION
[ ]
[ ], As Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
I am the [ ]of Marathon Oil Corporation, a Delaware corporation (the
"Guarantor"). I am furnishing this opinion under Section 7(c) of the
Underwriting Agreement dated [ ] (the "Underwriting Agreement") that is
incorporated by reference into the Pricing Agreement dated [ ] (the "Pricing
Agreement") by and among Marathon Global Funding Corporation, a Nova Scotia
corporation (the "Company"), Marathon Oil Corporation (the "Guarantor") and the
several Underwriters named in Schedule I to the Pricing Agreement (the
"Underwriters"), relating to the issuance and sale by the Company to the
Underwriters of [$___,000,000 aggregate principal amount of [ ] Notes due [ ]
and] $___,000,000 aggregate principal amount of [ ] Notes due [ ] (the
"Securities"). The Company will issue the Securities under an Indenture (the
"Indenture") dated as of [ ] between it, the Guarantor and JPMorgan Chase Bank,
as trustee. The Securities will be fully and unconditionally guaranteed (the
"Guarantee") by the Guarantor pursuant to the Indenture.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration Nos. 333-90034 and 333-90034-01) relating to the registration
under the Securities Act of 1933, as amended (the "1933 Act"), and the offering
thereof from time to time in accordance therewith and the rules and regulations
of the Commission thereunder, of securities of the Company, to be fully and
unconditionally guaranteed by the Guarantor, including the Securities. That
registration statement, as amended by post-effective amendment No. 1 thereto,
which the Company and the Guarantor filed with the Commission on June 14, 2002,
at the time that registration statement became effective, including all
documents incorporated by reference therein, is hereinafter referred to as the
"Registration Statement," and the prospectus dated June 17, 2002, together with
the prospectus supplement dated June 18, 2002,each as filed with the Commission
in accordance with Rule 424(b) under the 1933 Act, including all documents
incorporated by reference therein, are hereinafter collectively referred to as
the "Prospectus."
I have, or attorneys under my supervision have, examined the originals,
or copies certified or otherwise identified, of the restated certificate of
incorporation and by-laws, each as amended to date, of the Guarantor, the
Registration Statement, the Prospectus, the Underwriting Agreement, the Pricing
Agreement, the Indenture, corporate records of the Guarantor, including
IV-2
minute books of the Guarantor, certificates of public officials and of
representatives of the Guarantor, oral representations of the Guarantor's
employees, statutes and other instruments and documents, as a basis for the
opinions I hereinafter express. In giving these opinions, I have relied on
certificates of representatives of the Guarantor and of public officials with
respect to the accuracy of the factual matters those certificates cover or
contain, and I have assumed that all signatures on documents I have examined are
genuine, all documents submitted to me as originals are authentic, all documents
submitted to me as certified or photostatic copies conform to the original
copies of those documents and those original copies are authentic.
On the basis of the foregoing and subject to the assumptions,
limitations and qualifications I set forth herein, I am of the following
opinions:
1. The authorized capital stock of the Guarantor is comprised of
550,000,000 shares of common stock, par value $1.00 per share ("Common Stock"),
and 26,000,000 shares of preferred stock, no par value ("Preferred Stock"). No
shares of Preferred Stock have been issued. All the issued and outstanding
shares of Common Stock have been duly and validly authorized and issued and are
fully paid and nonassessable.
2. Each subsidiary of the Guarantor listed on Annex A hereto (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly incorporated
or formed and is validly existing as a corporation, limited liability company or
limited partnership in good standing under the laws of the jurisdiction of its
incorporation or formation, as the case may be, and each Subsidiary has full
corporate or other power and authority to own its properties and to conduct its
business as described in the Prospectus. All the outstanding shares of capital
stock or other equity ownership interests of each of the Subsidiaries which the
Prospectus indicates are owned by the Guarantor, directly or indirectly through
one or more Subsidiaries, to my knowledge, after due inquiry, free and clear of
any perfected security interest and any other material security interest, claim,
lien or encumbrance (other than restrictions on transfer contained in the
Guarantor's joint venture agreements).
3. I do not know of (a) any pending or threatened legal or governmental
proceedings involving the Guarantor or any Subsidiary that are required to be
disclosed in the Prospectus, or any amendment or supplement thereto, which are
not disclosed in the Prospectus or (b) any franchise, contract or other document
of a character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required. The statements included or incorporated by reference in the
Prospectus under the headings "Description of Notes," "Description of Debt
Securities," and "Management's Discussion and Analysis of Environmental Matters,
Litigation and Contingencies," insofar as such statements summarize legal
matters, agreements, documents or proceedings discussed therein, are accurate
and fair summaries of such legal matters, agreements, documents or proceedings.
4. The issuance and sale of the Securities, including the Guarantee,
the consummation of any of the other transactions contemplated by the Pricing
Agreement and the compliance by the Guarantor with the terms of the Pricing
Agreement will not conflict with, or result in a breach or violation of or the
imposition of any lien, charge or encumbrance on any property or assets of the
Guarantor or any Subsidiary under, (i) the terms of any indenture,
IV-3
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement or instrument to which the Guarantor or any Subsidiary is a
party or bound or to which its or their property is subject, except for any such
conflicts, breaches, violations, liens, charges or encumbrances as would not,
individually or in the aggregate, have a material adverse effect on the
consolidated financial position, stockholders' equity or results of operations
of the Guarantor and its subsidiaries, taken as a whole or (ii) to my knowledge,
any statute, law, rule, regulation, judgment, order or decree applicable to the
Guarantor or any Subsidiary of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having jurisdiction
over the Guarantor or that Subsidiary or any of its properties, except for such
conflicts, breaches or violations which would not, individually or in the
aggregate, have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Guarantor and its
subsidiaries, taken as a whole.
5. The documents incorporated by reference in the Prospectus as amended
or supplemented (other than (a) the financial statements (including the notes
thereto and the auditor's reports thereon) included or incorporated by reference
therein or omitted therefrom and (b) the other accounting, financial, reserve
engineering and statistical information contained or incorporated by reference
therein or omitted therefrom, as to which such counsel need not comment), as of
the respective dates on which they became effective or were filed with the
Commission, as the case may be, appear on their face to be appropriately
responsive in all material respects to the requirements of the 1933 Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder.
6. No holders of securities of the Company or the Guarantor have rights
to the registration of such securities under the Registration Statement.
I have participated in conferences with officers and other
representatives of the Company and the Guarantor, representatives of the
independent public accountants of the Guarantor and your representatives at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed. Although I have not undertaken to determine
independently, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements the Registration Statement or the
Prospectus contains, I advise you that, on the basis of the foregoing, no facts
have come to my attention that lead me to believe that the Registration
Statement (other than (a) the financial statements and schedules (including the
notes thereto and the auditor's reports thereon) included or incorporated by
reference therein or omitted therefrom and (b) the other accounting, financial,
reserve engineering and statistical information contained or incorporated by
reference therein or omitted therefrom, as to which I have not been asked to
comment, and it being understood that I am making no statement as to the
accuracy of any statement or representation in any exhibit to the Registration
Statement), as of its effective date, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus (other than (a) the financial statements (including the notes thereto
and the auditor's reports thereon) included or incorporated by reference therein
or omitted therefrom and (b) the other accounting, financial, reserve
engineering and statistical information contained or incorporated by reference
therein or omitted therefrom, as to which I have not been asked to comment), as
of its issue date or the date hereof, contained or contains an untrue statement
of a material fact or
IV-4
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
In this letter, phrases such as "to my knowledge" and those with
equivalent wording refer to my conscious awareness without any independent
investigation.
I am licensed to practice law in the State of Texas. The opinions set
forth above are limited in all respects to matters of the laws of the State of
Texas, the General Corporation Law of the State of Delaware and applicable
federal law. I am providing this opinion in my capacity as General Counsel of
the Guarantor and not in my individual capacity as a lawyer.
I am furnishing this letter to you solely for your use in connection
with the transactions consummated on the date hereof under the Pricing Agreement
and may not be relied on by any other person or for any other purpose. This
letter speaks as of the date hereof, and I disclaim any obligation to update it.
Very truly yours,
ANNEX V
FORM OF OUTSIDE COUNSEL'S OPINION
[Letterhead of Xxxxx Xxxxx L.L.P.]
[ ]
[ ], As Representatives of the several Underwriters
c/o [ ]
Ladies and Gentlemen:
We are furnishing this opinion letter to you at the request of Marathon
Oil Corporation, a Delaware corporation (the "Guarantor"), under Section 7(c) of
the Underwriting Agreement dated [ ] (the "Underwriting Agreement") that is
incorporated by reference into the Pricing Agreement dated [ ] (the "Pricing
Agreement") by and among Marathon Global Funding Corporation, a Nova Scotia
corporation (the "Company"), the Guarantor and the several Underwriters Schedule
I to the Pricing Agreement names (the "Underwriters"), relating to the sale by
the Company to the Underwriters of [$___,000,000 aggregate principal amount of [
] Notes due [ ] and $___,000,000 aggregate principal amount of [ ] Notes due [
], fully and unconditionally guaranteed by the Guarantor (such Notes, together
with the guarantees relating thereto by the Guarantor (the "Guarantees"), being
referred to herein as the "Securities"). The Securities will be issued under an
Indenture (the "Indenture") dated as of [ ] among the Company, the Guarantor and
[ ], as trustee.
The Company and the Guarantor have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(Registration No. #333-90034 and #333-90034-01) relating to the registration
under the Securities Act of 1933 (the "1933 Act"), and the offering thereof from
time to time in accordance therewith and the rules and regulations of the
Commission thereunder, of debt securities of the Company, to be fully
unconditionally guaranteed by the Guarantor, including the Securities. That
registration statement which the Company and the Guarantor filed with the
Commission on June 7, 2002, at the time that registration statement became
effective, including all documents filed as part thereof or incorporated by
reference therein, is hereinafter referred to as the "Registration Statement,"
and the prospectus dated June 17, 2002, together with the prospectus supplement
dated [ ], each as filed with the Commission in accordance with Rule 424(b)
under the 1933 Act, including all documents incorporated by reference therein,
are hereinafter collectively referred to as the "Prospectus."
We have examined the originals, or copies certified or otherwise
identified, of the restated certificate of incorporation and by-laws, each as
amended to date, of the Guarantor (the "Charter Documents"), the Registration
Statement, the Prospectus, the Underwriting Agreement,
V-2
the Pricing Agreement, the Indenture, the Establishment Action (as defined in
the Indenture) relating to the Securities, the form of the Securities, corporate
records of the Guarantor, including minute books of the Guarantor it has
furnished to us, certificates of public officials and of representatives of the
Guarantor, statutes and other instruments and documents, as a basis for the
opinions we hereinafter express. In giving these opinions, we have relied on
certificates of officers of the Guarantor and of public officials with respect
to the accuracy of the factual matters those certificates cover or contain, and
we have assumed that all signatures on documents we have examined are genuine,
all documents submitted to us as originals are authentic, all documents
submitted to us as certified or photostatic copies conform to the original
copies of those documents and those original copies are authentic. In giving the
opinions set forth in paragraphs 4 and 8 below, we have relied on oral advice of
the staff of the Commission that the Commission has declared the Registration
Statement effective under the 1933 Act.
On the basis of the foregoing and subject to the assumptions,
limitations and qualifications we set forth herein, we are of the following
opinions:
1. The Guarantor is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and to conduct the business
of the Marathon Group as described in the Prospectus [as amended or
supplemented].
2. The Guarantor has duly authorized, executed and delivered the
Pricing Agreement.
3. The Guarantor has duly authorized the issuance and sale of the
Guarantees. When executed and authenticated in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in accordance
with the Pricing Agreement, assuming the due authorization, execution and
delivery by the Company of the Indenture, the Securities will constitute valid
and legally binding obligations of the Company, enforceable against the Company
in accordance with their terms and entitled to the benefits of the Indenture,
and the Guarantees will constitute valid and legally binding obligations of the
Guarantor, enforceable against the Guarantor in accordance with their terms and
entitled to the benefits of the Indenture. The Securities and the Guarantees
conform, as to legal matters, in all material respects to the descriptions
thereof the Prospectus [as amended or supplemented] contains.
4. The Guarantor has duly authorized, executed and delivered the
Indenture. Assuming the due authorization, execution and delivery by the Company
of the Indenture, the Indenture constitutes a valid and legally binding
obligation of the Company and the Guarantor, enforceable against the Company and
the Guarantor in accordance with its terms and has been duly qualified under the
Trust Indenture Act of 1939 (the "Trust Indenture Act").
5. The issuance and sale of the Securities and the Guarantees, the
consummation of any of the other transactions contemplated by the Pricing
Agreement and the compliance by the Guarantor with the terms of the Pricing
Agreement will not result in any violation of (a) the Charter Documents, (b) the
terms of any agreement or instrument to which the Guarantor or any Subsidiary is
a party or bound or to which its or their property is subject and listed on
Schedule I
V-3
hereto or (c) the laws of the State of New York or Texas, the General
Corporation Law of the State of Delaware or the Federal laws of the United
States.
6. No consent, approval, authorization or order of, or registration or
qualification with, any court or governmental agency or body having jurisdiction
over the Guarantor or any of its properties is required on the part of the
Guarantor under any applicable law for issuance and sale of the Securities or
the consummation of the other transactions the Pricing Agreement contemplates,
except such as have been obtained under the 1933 Act and the Trust Indenture Act
and such consents, approvals, authorizations, registrations or qualifications as
state securities or Blue Sky laws may require in connection with the purchase
and distribution of the Securities by the Underwriters.
7. The Registration Statement and the Prospectus and any amendments and
supplements thereto made by the Company and the Guarantor prior to the date
hereof, as of their respective effective or issue dates, appear on their face to
have been appropriately responsive in all material respects to the requirements
of the 1933 Act and the Trust Indenture Act.
8. The Registration Statement has become effective under the 1933 Act
and, to our knowledge, no stop order suspending its effectiveness has been
issued and no proceedings for that purpose are pending before or threatened by
the Commission. Any filing of the Prospectus Rule 424(b) under the 1933 Act
requires has been timely made in accordance with that rule.
9. We do not know of any pending or threatened legal or governmental
proceedings with respect to the Company or the Guarantor that are required to be
disclosed in the Prospectus [as amended or supplemented], or any amendment or
supplement thereto, which are not disclosed in the Prospectus [as amended or
supplemented].
10. Neither the Company nor the Guarantor is and, after giving effect
to the offering and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus as amended or supplemented, will be an
"investment company" as the Investment Company Act of 1940 defines that term.
We have participated in conferences with officers and other
representatives of the Company and Guarantor, representatives of the independent
public accountants of the Company and Guarantor, your representatives and your
counsel at which the contents of the Registration Statement and the Prospectus
and related matters were discussed. Although we have not undertaken to determine
independently, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements the Registration Statement or the
Prospectus contains (except to the extent set forth in the last sentence of
paragraph 3 above), we advise you that, on the basis of the foregoing, no facts
have come to our attention that lead us to believe that the Registration
Statement, as of its effective date, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus,
as of its issue date or the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. In paragraph 7 above
and in this paragraph, references to the Registration Statement or the
Prospectus do not include references to any of the following, as
V-4
to which we have not been asked to comment, which the Registration Statement or
the Prospectus contains or incorporates by reference or omits: (a) the financial
statements, including the notes and schedules, if any thereto, or the auditor's
reports on the audited portions thereof, (b) the other accounting, financial,
reserve engineering and statistical information, (c) any statement or
representation in any exhibit to the Registration Statement or (d) the
information respecting the business of the U.S. Steel Group.
Our opinions above as to the enforceability of the Securities, the
Guarantees, and the Indenture are subject to the effect of (a) bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium and other laws
relating to or affecting creditors' rights generally, (b) general principles of
equity (regardless of whether that enforcement is considered in a proceeding in
equity or at law) and (c) any implied covenants of good faith and fair dealing.
In this letter, references to federal statutes include all amendments
thereto and all rules and regulations of the Commission thereunder, in each as
in effect on the date hereof.
In this letter, phrases such as "to our knowledge," "known to us" and
those with equivalent wording refer to the conscious awareness of information by
the lawyers of this Firm who have prepared or signed this letter or been
actively involved in assisting and advising the Company and the Guarantor in
connection with the preparation of the Registration Statement, the Prospectus
and the execution and delivery of the Pricing Agreement, without any independent
investigation by any lawyer of this Firm.
Except as we otherwise expressly state, we limit our opinions in this
letter in all respects to matters of the laws of the States of New York and
Texas and the General Corporation Law of the State of Delaware.
We are furnishing this letter to you solely for your use in connection
with the transactions consummated on the date hereof under the Pricing
Agreement, and it may not be relied on by any other person or for any other
purpose. This letter speaks as of the date hereof, and we disclaim any
obligation to update it.
Very truly yours,
ANNEX VI
June ___, 2002
Banc of America Securities LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
and/
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and
As Representatives of the several Underwriters,
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
RE: MARATHON GLOBAL FUNDING CORPORATION
ISSUE OF U.S. $400,000,000 PRINCIPAL AMOUNT OF % NOTES DUE , 2012
We have acted as special Canadian tax counsel to Marathon Global Funding
Corporation (the "Company") in connection with the issue and sale by the Company
of U.S. $400,000,000 principal amount of o% Notes due June ___, 2012 of the
Company (the "Designated Securities"), pursuant to an Underwriting Agreement
dated June ___, 2002 (the "Underwriting Agreement") between the Company,
Marathon Oil Corporation (the "Guarantor") and Banc of America Securities LLC,
for itself and the other several Underwriters named in Schedule ___ of the
Underwriting Agreement (the "Underwriters").
The Notes are issued pursuant to the provisions of a trust indenture (the
"Indenture") dated as of June ___, 2012 between the Company, the Guarantor and
XX Xxxxxx Chase Bank, as trustee (the "Trustee").
Scope of Review, Assumptions and Qualifications
As such counsel, we have reviewed:
the Underwriting Agreement;
a Pricing Agreement dated June __, 2002;
the Indenture;
VI-2
the preliminary prospectus of the Company dated June 17, 2002; and
the preliminary prospectus supplement of the Company dated June ___,
2002 relating to the offering of the Designated Securities filed with
the SEC (the "Prospectus Supplement").
Applicable Law
This opinion is rendered solely with respect to the federal laws of Canada.
Opinion
Based upon the foregoing, we are of the opinion that:
The information in the Prospectus Supplement under the caption "Canadian Federal
Income Tax Considerations" is correct in all material respects.
This opinion is furnished to you by us as special Canadian tax counsel to the
Company and is solely for the benefit of the addressees hereof and not for the
benefit of any other person and is rendered solely in connection with the sale
of the Designated Securities. This opinion may not be quoted in whole or in
part, or otherwise referred to or used for any purpose, without our prior
written consent except that [ ] and Cravath, Swaine & Xxxxx may quote and rely
on this opinion for purposes of their opinions delivered to the Underwriters on
the date hereof in connection with the creation, issue and sale by the Company
of the Designated Securities and related transactions.
Yours very truly,
XXXXXXX XXXXX LLP
Per:
